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Site blocking laws could drag VPNs into the anti-piracy net

Legal and copyright experts have raised concerns that virtual private network providers could be caught in the crossfire if new laws pass requiring ISPs to block websites that "facilitate" piracy.

Image by Nicolas Raymond, CC BY 2.0

After the Federal Government tabled new legislation to allow the blocking of sites facilitating piracy, legal and copyright experts have raised concerns that VPN providers could be swept up in the net.

The Attorney-General introduced legislation to Parliament in March which, if passed, would allow rights holders in Australia to seek a Federal Court injunction to block overseas websites that "facilitate" piracy. According to the Copyright Amendment (Online Infringement) Bill, the ISPs would be required to take "reasonable steps" to prevent access for all Australians if an online site was found to "infringe, or facilitate an infringement of, copyright," with this being the "primary purpose" of the site in question.

While the bill alludes to torrent directories such as The Pirate Bay, there are concerns that VPN services could be caught in the crossfire.

According to Nicolas Suzor, senior lecturer at the QUT School of Law, Australia's copyright landscape "is already pretty hostile towards online service providers, particularly those that aren't ISPs" and services that are seen to be dodging geoblocks could be subject to injunctions sought by rights holders.

"VPN providers so far haven't seen too much trouble, but those VPNs that might be 'primarily' directed to 'facilitating' copyright infringement would certainly have some reason to be concerned about these changes," he said.

While he argued that laws wouldn't be likely to have much impact on a "general purpose VPN," some services could potentially be seen to facilitate piracy under the terms in the Attorney-General's Bill.

"The category we're really talking about here are VPNs operating in a grey area, like unblock-us and getflix.com.au, for example, who help people circumvent geoblocks," he said. "They probably don't facilitate infringement in Australia, but there's a good chance that they could get caught up in the proposed rules because they might be facilitating infringement that happens over in the US.

"This proposal seems to me to not only increase costs for ISPs, but it introduces a whole new and undefined area of risk that online service providers will have to weigh up. Given that Australia's already pretty hostile to cloud services etc, this isn't a great move -- particularly since it seems to come with very little public benefit."

Similarly, the Australian Digital Alliance has raised concerns that the "primary purpose" test written into the legislation is new, and lacks clarity.

"It's unclear how many sites/what type of sites would be caught. VPN and cloud storage providers would be amongst a number of sites that could be blocked," the ADA said.

"While the Explanatory Memorandum [to the Copyright Bill] is clear that this is not meant to be used to enforce geoblocking (e.g. to directly block US iTunes store or US Netflix) there is a reasonable chance that a VPN may be considered to be 'facilitating' infringement of copyright, especially for sites that either advertise themselves as ways to obtain content from non-Australian sites or with a majority of users that do so."

While VPNs can be used as a legitimate service for privacy- and security-conscious internet users, the ADA argues that VPN service providers that promote their ability to circumvent geoblocks and access restricted content could be in the firing line. Similarly, cyberlockers and file hosting services that allow users to host masses of content could face greater scrutiny under the new Australian legislation.

There is a strong case already being made in Australia that internet users using VPNs to stream content from overseas are infringing copyright.

In a paper released in January this year titled "Geo-blocking, VPNs and Copyright", the Australian Copyright Council argued that Australians who use VPNs to stream TV shows from the United States "before the spoilers are all over the internet" are likely to be infringing copyright.

"If someone in Australia uses a VPN to download a copy of material from an overseas website and they do not have permission from the copyright owner to download the material in Australia, it is likely to be an infringement of copyright in Australia," the ACC argued.

"Similarly, if someone in Australia uses a VPN to stream material from an overseas website and they do not have permission to stream the material in Australia from the copyright owner, it is likely to be an infringement of copyright in Australia. This is because streaming involves the copyright owner's exclusive right of communication to the public."

While the Copyright Infringement Bill uses terms such as 'primary purpose' and 'facilitating infringement' these are open to interpretation.

"There are a number of online locations that may facilitate copyright infringement, but also serve other legitimate purposes," said Trish Hepworth, copyright advisor to the Australian Libraries Copyright Committee. "Sites offering VPNs may facilitate illegal downloading or help mask the identity of people with security and privacy concerns. Websites that collate infringing material, such as Wikileaks, may nonetheless serve legitimate purposes."

Ultimately, the questions of primary purpose and facilitation of piracy could come down to decisions made in the Federal Court.

Australia is not the only country to bring in copyright regulations and legislation that spell trouble for VPNs.

Already, there have been concerns that VPN providers in Canada may leave that country after the introduction of stricter regulations around copyright infringement and piracy in that country.

Canada introduced a "notice-on-notice" scheme at the start of the year, requiring internet service providers to forward copyright notices to their customers, or face up to $10,000 in fines.

However, TorrentFreak reports that the laws -- which involve the mandatory retention of data in order to match customer accounts with allocated IP addresses -- spelled "disaster for VPN providers" who trade on their ability to provide anonymity.