By: Kyle Berry
Recently, people streaming movies and TV shows have begun to use virtual private networks (VPNs) to access content that streaming services restrict to certain geographic regions. Because of the ambiguity in international law and the implementation of the World Intellectual Property Organization (WIPO) Copyright Treaty, domestic law fails to offer streaming services a recourse to sue foreign VPN users. The WIPO Copyright Treaty established an anti-circumvention provision that would seem to apply to using VPNs to stream from other countries. But because of the provision’s ambiguity, many of the WIPO Copyright Treaty member countries have adopted different standards.
This problem is exemplified by the United States and the European Union (EU). The United States adopted the Digital Millennium Copyright Act from the WIPO Copyright Treaty’s language, but the US circuit courts have split on whether circumventing a technological measure requires a connection to an infringement of US copyright law. Similarly, the EU member countries have also split on whether their respective domestic laws require a connection to domestic infringement. This has resulted in varying regimes, harming the WIPO Copyright Treaty’s goal of harmonizing international copyright law. But if the United States were to adopt the Austrian implementation of this treaty provision, the United States would take steps toward fulfilling the WIPO Copyright Treaty’s goal of harmonization. Specifically, the United States should adopt a statute that creates liability for circumventing a technological measure for the purposes of streaming a copyrighted work.