South African Netflix users aren’t legit, they’re just ‘paying pirates’


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. Unsurprisingly, this isn’t enough for tech savvy consumers who know where to get the latest shows online, but not everyone wants to indulge in copyright infringement by turning to torrenting. So more and more people in South Africa seem to be looking to popular video rental service, Netflix, for their entertainment needs, and guides for accessing the service are cropping up all over the national web.

The problem is that even Netflix content isn’t legally available in South Africa, probably for the same reason that the local iTunes store lacks TV and some movie content: licensing restrictions. Brett Haggard pointed out that these are likely to keep the service from officially launching within our shores (despite the dreams of many) in his post last week titled Cool your jets, Netflix and Hulu aren’t coming to South Africa.

It seems likely that local pay TV providers have secured exclusive rights or first options to distribute popular TV and movie content in South Africa which Netflix will struggle to circumvent. And if you take it upon yourself to do so – because the kind of big hearted viewer who actually wants to contribute cash in return for entertainment, you’ll fall foul of the law too. If you read through Netflix’s Terms of Use, you’ll notice that Netflix is only available in certain regions, is using technological measures to verify that users are only from those regions and that users are prohibited from circumventing these controls. The Netflix Terms of Use are a contract between users and Netflix and “given your use of” the Netflix service. If you don’t agree with the Terms of Use, you may not use the service. One of the sections of the Terms of Use that deals with this says the following (I have highlighted the key phrases):

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.

The geographical restrictions and prohibitions on circumventing these restrictions are detailed in the Terms of Use which, as a Netflix user, you agree to. The Terms of Use also fulfil another purpose: they also convey the license users are granted, to use the service. These licenses are sets of permissions which copyright owners grant to users to consume the content in certain ways. If you don’t have a license, you lack permission and your content consumption is unlawful. In this case, if you are not using the Netflix service in a manner that the Terms of Use permit (so, for example, you are using Netflix in South Africa), that is not authorised and you may as well be torrenting the content. Both are unlicensed and unlawful. The main difference between torrenting your favourite TV shows and getting them through Netflix is that you are at least paying for the Netflix content and may sleep easier with a clearer conscience, but it doesn’t make much difference in the eyes of the law.

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If you would like to read about this in more detail, take a look at my post on Web•Tech•Law.

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