The Wikileaks release of tens of thousands of Sony documents includes revelations about opposition to the copyright treaty for the blind, political fundraising, concerns about fair use in treaties, strategies to fund screening rooms in embassies to create a stronger will to protect studio interests, and personal calls to Prime Ministers (UK Prime Minister Cameron in this case) regarding the copyright law. The documents also show that Sony lobbied Netflix to stop Australian users from using VPNs to access the service. Yet it would appear that Sony’s own licence terms with Netflix opens the door to general VPN use.
The documents also include a stunning array of commercial documents, including licensing agreements with broadcasters and online video services around the world. A general search for Canadian documents immediately uncovered parts of the licensing agreement between Sony and Netflix, including the content protection requirements and obligations. Netflix is unsurprisingly requirement to encrypt all programs, use only pre-approved digital rights management systems, and meet various technical requirements. Of great interest to many Netflix subscribers, particularly those that try to access U.S. Netflix, are the requirements related to geographic filtering. The provision states:
3.1 Licensee must utilize an industry standard geolocation service to verify that a Registered User is located in the Territory that must:
3.1.1. provide geographic location information based on DNS registrations, WHOIS databases and Internet subnet mapping.
3.1.2. provide geolocation bypass detection technology designed to detect IP addresses located in the Territory, but being used by Registered Users outside the Territory.
3.1.3. use such geolocation bypass detection technology to detect known web proxies, DNS based proxies, anonymizing services and VPNs which have been created for the primary intent of bypassing geo-restrictions.
3.2. Licensee shall use such information about Registered User IP addresses as provided by the industry standard geolocation service to prevent access to Included Programs, via the SVOD Service, from Registered Users outside the Territory.
3.3. Both geolocation data and geolocation bypass data must be updated no less frequently than every two (2) weeks.
3.4. Licensee agrees to periodically review geofiltering tactics during the Term of this Agreement.
3.5. Licensor acknowledges that Internet Protocol (IP) based geolocation and geofiltering technologies may in some cases be circumvented by highly proficient and determined individuals or organizations.
The provision confirms several things. First, Hollywood studios are requiring Netflix to use geo-filtering technologies. Those technologies must be regularly updated and try to detect VPN services. It is notable that detecting VPNs or web proxies that avoid geo-identification are limited to those that “have been created for the primary intent of bypassing geo-restrictions.” That may explain why Netflix would focus on VPN services that market themselves as primarily allowing for access to U.S. Netflix, while not stopping general VPN services that are used for a wide range of purposes, including protecting personal privacy.
Second, the provision does not include other geographic measures, such as credit card confirmation to a specific country (as is used in other Sony agreements). This may reflect the fact that users are entitled to access the service while traveling and may access U.S. Netflix while in the U.S. The service therefore restricts based on where a user is located when accessing the service, not where they reside.
Third, there is a provision that acknowledges that the geolocation technologies can be circumvented by “highly proficient and determined individuals or organizations.” These terms do not appear to be defined, which may create sufficient flexibility to allow Netflix to argue that it meets Sony’s contractual requirements on geo-filtering but that the Hollywood studio itself has acknowledged the imperfections of the technology which can be circumvented.