Using Netflix in South Africa is illegal

South Africans continue to be frustrated by the paucity of legitimate and convenient TV and movie download or streaming options. At the moment DSTV and a limited South African iTunes store are the primary options. Unfortunately this doesn’t seem to be enough so more and more consumers are looking to popular video rental service, Netflix, for their entertainment needs. The problem is that Netflix content isn’t legally available in South Africa and its likely for the same reason that the local iTunes store lacks TV and some movie content: licensing restrictions.

South Africans continue to be frustrated by the paucity of legitimate and convenient TV and movie download or streaming options. At the moment DSTV and a limited South African iTunes store are the primary options. Unfortunately this doesn’t seem to be enough so more and more consumers are looking to popular video rental service, Netflix, for their entertainment needs. The problem is that Netflix content isn’t legally available in South Africa and its likely for the same reason that the local iTunes store lacks TV and some movie content: licensing restrictions. Brett Haggard, writing for htxt.africa a week or so ago, pointed this out:

Right now, we’re told by inside sources at the big pay TV service providers on the continent (take a guess who, I mean, there aren’t all that many to choose from) that the digital rights for the popular television series we all crave so badly haven’t been signed, sealed and delivered to any one party as yet. Our sources tell us that, should anyone express any interest in bringing that content to the continent in a digital form, the big pay TV service providers will have the first shot at the action, in effect blocking the attempts of other players to get their hands on vital content licenses.

What this means is that the only legitimate means of obtaining much of the TV content (and probably the movies missing from the South African iTunes store) is through the local pay TV providers. The reason is what appear to be exclusive or pre-emptive content licensing deals the local paid TV providers have struck with the content producers or distributors. In many respects, this is the same issue we faced when the iTunes store was not yet available in South Africa (or, at least, where certain content or channels are not available here) and which I wrote about in my 2009 post titled “Legalities of US iTunes Store vouchers in South Africa“:

What does this mean? Well, the license granted to users is the set of permissions that give users the lawful right to consume that content. This is primarily a copyright issue. The content available in the store is owned by 3rd party content creators, publishers and other rights holders. They own the content and, through a license, grant users the right to consume the content.

So, for example, a music company owns the rights to an album that is available for sale in the iTunes Store. This means it likely owns copyright in that album and the bundle of rights that give it the exclusive rights to do various things with the content. In the absence of a license from the music company, you may not do much with the music. The license contained in the iTunes terms of service grants you permission to buy the album and consume it. In this case the license comes from Apple which was, in turn, licensed by the music company to sell the album to you under the license in Apple’s terms of service. It is a little complicated but the bottom line here is that the license in the iTunes terms of service is a series of permissions and restrictions. One of those restrictions is the geographical limitation of the iTunes Store’s availability. What that means is that if you purchase content from the iTunes Store in violation you are doing so in breach of the license and that, in turn, is a breach of copyright and is illegal. It is also a breach of your contract with Apple in the form of the terms of service and Apple could effectively cut your access to the Store and potentially the content you purchased from the Store.

Netflix users face a similar challenge and for similar reasons. The document which governs much of a Netflix user’s service use is the Netflix Terms of Use which begins with the following:

Welcome to Netflix! We are a subscription service that provides our members with access to motion pictures, television and other audio-visual entertainment (“movies & TV shows”) streamed over the Internet to certain Internet-connected TV’s, computers and other devices (“Netflix ready devices”).

These Terms of Use govern your use of our service. As used in these Terms of Use, “Netflix service,” “our service” or “the service” means the service provided by Netflix for discovering and watching movies & TV shows, including all features and functionalities, website, and user interfaces, as well as all content and software associated with our service.

These Terms of Use cover a broad range of issues relating to your service use but if you skip to about halfway down, to section 6 titled “Netflix Service”, you will read these key clauses (parts c, e and f, respectively – I have highlighted the key sections):

You may view a movie or TV show through the Netflix service only in geographic locations where we offer our service and have licensed such movie or TV show. The content that may be available to watch will vary by geographic location. Netflix will use technologies to verify your geographic location. YOU MAY WATCH ON UP TO SIX UNIQUE AUTHORIZED NETFLIX READY DEVICES AND THE NUMBER OF DEVICES ON WHICH YOU MAY SIMULTANEOUSLY WATCH IS LIMITED. Go to the change plan information in the “Your Account” page to see the number of devices on which you may simultaneously watch. The number of devices available for use and the simultaneous streams may change from time to time at our discretion without notice.

You agree to use the Netflix service, including all features and functionalities associated therewith, in accordance with all applicable laws, rules and regulations, including public performance limitations or other restrictions on use of the service or content therein. You agree not to archive, download (other than through caching necessary for personal use), reproduce, distribute, modify, display, perform, publish, license, create derivative works from, offer for sale, or use (except as explicitly authorized in these Terms of Use) content and information contained on or obtained from or through the Netflix service without express written permission from Netflix or its licensors. You also agree not to: circumvent, remove, alter, deactivate, degrade or thwart any of the content protections in the Netflix service; use any robot, spider, scraper or other automated means to access the Netflix service; decompile, reverse engineer or disassemble any software or other products or processes accessible through the Netflix service; insert any code or product or manipulate the content of the Netflix service in any way; or, use any data mining, data gathering or extraction method. In addition, you agree not to upload, post, e-mail or otherwise send or transmit any material designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment associated with the Netflix service, including any software viruses or any other computer code, files or programs.

The availability of movies & TV shows to watch will change from time to time, and from country to country. The quality of the display of the streaming movies & TV shows may vary from computer to computer, and device to device, and may be affected by a variety of factors, such as your location, the bandwidth available through and/or speed of your Internet connection. You are responsible for all Internet access charges. Please check with your Internet provider for information on possible Internet data usage charges. Netflix makes no representations or warranties about the quality of your watching experience on your display. The time it takes to begin watching a movie or TV show will vary based on a number of factors, including your location, available bandwidth at the time, the movie or TV show you have selected and the configuration of your Netflix ready device.

In other words:

  • Content availability is limited by geography (almost certainly because of the sorts of licensing deals Haggard alluded to in his htxt.africa article);
  • Netflix will use verification technologies to confirm you are in the country you say you are in (this is to help Netflix ensure it complies with its licensing obligations to its content providers);
  • You agree not to circumvent measures Netflix puts in place to limit access to its service or to make use of the content other than as permitted by these Terms of Use;
  • As we have seen with the local iTunes store, the range of content that is available in different regions will vary from country to country.

As with iTunes, there are ways to circumvent Netflix’s technologically-enforced geographical restrictions but having the capability to access Netflix’s content doesn’t equate to permission to access it. If you lack permission to access the Netflix content you lack a license to access that content and unlicensed or unauthorised access to the Netflix content is copyright infringement. In legal terms, this is tantamount to torrenting the content. The main difference is that consumers who go to the lengths of spoofing their locations to sign up to use Netflix are, at least, paying for the content. That should count for something but it doesn’t change the legalities of not complying with Netflix’s Terms of Use.

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p>If you are accessing Netflix from South Africa, you are infringing copyright and likely to be branded a “pirate”. At least you’re paying.

The SA iTunes Store and your rights

iTunes Store SA - Home page

Apple expanded the South African iTunes Store earlier this week with a fairly comprehensive music catalogue. The Store does not include TV series, movies and a meaningful bookstore. It also does not yet include a number of games and applications that are available in more complete stores like the US and UK stores.

The South African iTunes Store terms and conditions

The legal framework governing access to and use of the South African iTunes Store is the iTunes Store Terms and Conditions. These terms and conditions are an agreement between users and an iTunes company based in Luxembourg. They cover use of the iTunes Store, Mac App Store, App Store and the iBookstore. As with many terms and conditions of this nature, when you click on the “Agree” button (or something similar), you signify your agreement to these terms and conditions and to being bound by them.

The South African iTunes Store’s expansion to include music is a welcome development. Introducing this sort of on-demand access to content through legitimate channels is both something that consumers have wanted for some time and is likely to give consumers tempted by an authorised content downloads (for example, through bit torrent or USENET) and affordable and legitimate alternative. South Africans can now buy music from the iTunes Store on a per album or per track basis and at very reasonable prices. In many cases, the album is available for download through the store are cheaper than their physical equivalents available through conventional retail stores. To add to this, music available through the iTunes Store is not hampered by digital rights management in this means that you can freely move them between your devices (users are permitted to download content you purchase from the iTunes Store on up to 10 so-called “Associated Devices” subject to the limitation that no more than five of these devices are “iTunes-authorised computers”.

It’s important to note that when you buy music from the iTunes Store, whether it be the South African store any other iTunes Store, you do not assume ownership of that content at all. Instead, you are granted a licence to use this content for “personal, non-commercial use”. The terms and conditions include a number of “Usage Rules” which establish a series of parameters for your use of the “iTunes Products” which you have access to through the store. These include limitations on how many times you can burn an audio playlist (seven times) and a prohibition on being able to burn video iTunes Products or “tone iTunes Products”. That said, the Usage Rules contain an exemption for iTunes Plus Products from many of these restrictions and allow you to “copy, store, and burn iTunes Plus Products as reasonably necessary for personal, non-commercial use”. The distinction between ordinary iTunes Products and iTunes Plus Products may be somewhat academic as much of the iTunes music catalogue qualifies as iTunes Plus Products. These iTunes Plus Products don’t, as far as I’m aware, have any copy protection mechanisms built into them and your use of those products is pretty much limited to “personal, non-commercial use”.

What this means is that your rights to use the music are relatively broad provided you confine your uses to “personal, non-commercial use”. At the same time, a stark reminder that users are only granted a licence to use this content is the following clause in the intellectual property section of the terms and conditions:

Notwithstanding any other provision of this Agreement, iTunes and its licensors reserve the right to change, suspend, remove, or disable access to any iTunes Products, content, or other materials comprising a part of the iTunes Store at any time without notice. In no event will iTunes be liable for making these changes. iTunes may also impose limits on the use of or access to certain features or portions of the iTunes Store, in any case and without notice or liability.

What this effectively means is that iTunes or a licensors such as book publishers (when it comes to book sales through the iTunes Store, the licensor comes into being is directly between users and book publishers who have the ability to enforce their licences against the users directly) retain the ability to modify, suspend or even revoke your licence to use this content which you have paid for “at any time without notice”. In addition, iTunes also absolves itself from any liability flowing from these changes to your licenses. The reason for this is that our copyright law does not extend some of the personal use exceptions to copyright infringement we enjoy with literary works like books to music. This means that while you can copy a book for personal use (to a degree), you have no such right under our current law when it comes to music so it all comes down to the licenses you are granted by the rights holders like the music labels and publishers.

Another interesting aspect of these terms and conditions (which are really quite lengthy and you should read them) is that the iTunes Store is available for use by users who are between the ages of 13 and 18 although the terms and conditions do suggest that these users “review this Agreement with your parent or guardian to make sure that you and your parent or guardian understand it”. This particular provision recognises that minors have limited contractual capacity and their parents or guardians retain the right to terminate agreements that children enter into under certain conditions.

The elephant in the store

iTunes Store US - Books-2

The absence of TV series, movies and even books which are otherwise available through the Amazon Kindle store is likely largely due to licensing restrictions applicable to that content in some way or another. In the case of books, publishers often make use of fairly intricate and geographical licensing restrictions on which books may be sold when and in what formats. This doesn’t really make much sense where South Africans have had the ability to buy a wide range of commercially available books through the Kindle store for some time. What may be happening there is that the publishers are either negotiating their royalties with iTunes or are constrained by licences which they have already granted to parties in their local supply chain. At the moment, the books you can access through the South African iTunes Store comprise older works, many of which are probably no longer protected by copyright and/or otherwise in the public domain.

iTunes Store SA - Books

When it comes to TV series and movies, I imagine the licensing restrictions over that content from the studios may be somewhat more complicated. The fact that this content is not yet available through the South African iTunes Store may have much to do with licences granted to content distributors such as local movie theatres and our TV networks. These are likely to be licences between the studios and the local providers and licensing the content to iTunes would probably threaten the business models in use by the movie theatre chains and the TV networks. Reaching a point where the content is licensed to iTunes, locally, is almost certainly going to be a fairly complicated process involving business model changes, new licensing arrangements and quite a bit of attention focused on protecting existing TV and movie delivery services in South Africa. TechCentral has done some digging around and have been able to confirm that there are a series of exclusive license arrangements which are keeping TV series and movies out of the South African iTunes Store for the time being.

iTunes Store US - Home

You may have noticed that TV series are appearing pretty soon after their release internationally and movie release times have accelerated considerably, to the point where DVD versions of many movies are often available in South African stores before their digital equivalents are available for purchase on the iTunes Store internationally. The local entertainment industry is clearly experimenting with different distribution models and timings and while it is somewhat frustrating not to have a more complete iTunes Store experience in South Africa, these moves are encouraging for consumers who are looking for flexible options to purchase the content they want.