This Content is Unavailable in Your Geographic Region: The United States' and the European Union's Implementation of Anti-Circumvention Measures.

• Author: Berry, Kyle

Table of Contents I. Introduction 486 II. Background 491 A. Geolocation, Geo-blocking, and VPNs 491 B. Copyright as a Means to Protect Digital Technology in International Law 493 1. The Berne Convention 494 2. A New Focus on the Internet 496 3. The International Treaties 497 C. The US and EU Influence on the WCT 498 1. The United States and the WIPO Conferences 499 2. The EU's Influence on the WIPO Treaties 500 D. Understanding the Criticisms of the WCT 502 III. The US and EU Implementation of the WIPO Treaties 503 A. The Digital Millennium Copyright Act 504 1. The Language of the DMCA 505 2. The Federal Circuit and the Nexus Requirement 506 3. The Circuits without a Nexus Requirement 509 B. EU Approach: Adoption of the Information Society Directive 510 1. Selected Implementation of the Information Society Directive 513 2. Sweden 513 3. Austria 515 IV. The Solution: Creating Liability for an Stream 517 A. The Intent Requirement 518 1. An Intent to Receive a Digital Transmission 519 2. The No-Objective-Basis Exclusion 521 B. Fulfilling the WIPO Treaty Obligations 521 1. Protecting Technological Measures 522 2. Harmonization 522 C. The Focus on Austria 523 D. Implementation Issues 524 1. Congressional Opposition 524 2. Enforcement Mechanisms 525 V. Conclusion 526 I. INTRODUCTION

While the COVID-19 pandemic rages on across the world, so too does the torrent of illegal copyright streaming. With billions of people around the world staying indoors, the use of illegal streaming sites has risen dramatically. (1) In the United States, Congress introduced legislation to create felony liability for websites that stream copyrighted content illegally. (2) As these changes to US copyright law were hidden within an omnibus spending bill for COVID-19 relief, content creators around the globe began to voice outrage, not only because of the furtive means by which the bill was passed, but also because of the perceived effect it would have on content creation writ large. (3) These content creators mistakenly believed that this bill would create felony liability for Digital Millennium Copyright Act (DMCA) strikes. (4) Their outrage begin to percolate throughout the internet, and soon thereafter "#StopDMCA" began to trend on Twitter. (5) Despite this noise, none of the acts within the spending bill made any changes to the DMCA. (6) While these criticisms were misplaced, all the attention on the DMCA indicates something important: there is public support for Congress to revisit the DMCA and examine how one of its provisions affects copyright streaming.

Specifically, Congress should examine the anti-circumvention provision of the DMCA. This provision seeks to prevent users from bypassing technological measures that control access to copyrighted works. The problem with this provision is that, by imprecisely defining circumvention, it has allowed users to bypass geo-blocking restrictions with impunity. To understand how Congress should best amend the anti-circumvention provision, it is necessary to understand how these geo-blocking practices apply to content consumers and how international developments have led to the ambiguity that makes the DMCA's anti-circumvention provision ineffective.

Recently, in part due to the COVID-19 pandemic, the use of streaming platforms has risen. As people began to stream content through streaming services more frequently, they noticed that a service's library of shows changed based on their geographic location. This practice of restricting content based on a user's geographic region is known as geo-blocking. With geo-blocking, Netflix and other streaming services are able to negotiate different licenses with the owners of the shows and movies they stream, customizing their libraries to the desires of a given geographic location. (7) From a user's perspective, this means that a person accessing Netflix in, for example, Canada will see a different collection of available shows than will a person accessing Netflix in the United States. (8)

Perturbed by these restrictive practices, many users in the United States began turning to services that bypass geo-blocking restrictions. (9 ) Specifically, virtual private networks (VPNs) allow a user to change his or her internet protocol address (IP address) to one from a different country, making the user appear to be accessing the content from a different country. (10) In fact, many of the companies offering VPN services explicitly advertise that their services are designed to be used to access American Netflix from anywhere in the world. (11) Beyond the possibility that this conduct is a breach of Netflix's terms of service, (12 ) this type of conduct may cause the US user to face civil liability under American copyright law. (13)

That users are able to "change" their geographic location using VPNs is problematic because the United States is a party to a number of international treaties governing copyright. These treaties have sought to harmonize the scope of international intellectual property (IP) law. But these international treaties only set the minimum standards of IP protection, resulting in a sea of differing copyright regimes, which vary between countries. (14) Thus, because countries have implemented international copyright treaties differently, it is not always the case that the same act offends both US copyright law and another country's law, even though both countries' laws were modeled after the same treaty provision.

In the context of using VPNs to bypass geo-blocking restrictions, the anti-circumvention provision of the World Intellectual Property Organization (WIPO) Copyright Treaty (WCT) exemplifies the problem of varying levels of copyright protection. (15) Broadly, this provision prohibits a user from circumventing an effective technological measure that protects a copyrighted work. (16) In implementing this provision, countries have established various standards for determining when a technological measure is circumvented. The treaty language was created with ambiguity as a result of US and European Union (EU) influence on the treaty negotiation process, and because of this ambiguity, the US circuit courts and the EU member states have both individually split on whether the act of circumvention is itself sufficient for liability, or whether the act of circumvention must have a connection to copyright infringement. (17)

This Note will examine the WCT. focusing on the implementation of its anti-circumvention provision in the United States and the EU to solve the problem created by VPN streaming. To understand the WCT's role in international copyright law, this Note begins by explaining the WCT's formulation, its focus on harmonizing international copyright law, and how the United States' and the EU's agendas forged the anti-circumvention provision. Next, this Note will explain the interpretation of the WCT's anti-circumvention provision in both the US circuit courts and the EU member countries. Particular focus will be on the interpretation of US law by the Ninth and Federal Circuit Courts, which will be compared to Sweden's and Austria's enacted laws. This comparison will highlight that Sweden's and Austria's statutes each share similarities to the Ninth Circuit's and Federal Circuit's interpretations, respectively. From this comparison, it will further be shown that the Austrian regime requires a specific intent to circumvent. This intent requirement is the most sensible way to fulfill the WCT's goal of harmonization and to properly balance the interests of content creators and users. Accordingly, this Note concludes by advocating for a change in US law by proposing the United States adopt a provision that creates liability where a user circumvents a technological protection measure with the intent to stream a copyrighted work.

2. BACKGROUND

   The anti-circumvention provision's ambiguity becomes relevant when a foreign user utilizes a VPN to select a US-based server to access a streaming service's catalogue. In this instance, the use of a VPN is necessary because the streaming service geo-blocks its content. Because this process involves citizens of one nation accessing copyrighted material stored physically in another country, it implicates the international treaties governing international IP infringement. International IP law has sought to adapt to the internet through numerous IP treaties. One of these treaties, the WCT, created the provision prohibiting the use of technology to circumvent digital protection measures. This anti-circumvention provision is, however, ambiguous, in part as a result of US and EU influence. Thus, this Part will begin by explaining VPNs and geo-blocking before turning to the development of international law. This Part will then introduce the WCT and the development of its anti-circumvention provision, before finally addressing how US and EU influence created the ambiguity within this provision.

   1. Geolocation, Geo-blocking, and VPNs

      This subpart begins by describing VPNs and geo-blocking as well as how the two are relevant to streaming online and digital protection measures.

      A VPN is a way for a user to access the internet using a virtual network that encrypts the user's data. The network is virtual because it can use a public or private network to transmit data, it is private because it uses encryption that users control, and it is a network because devices and systems communicate along a common path. (18) Put another way, a VPN utilizes a connection through a network where the user transmits data from her device onto a separate network. (19) While the data is in transit, the data is encrypted and unable to be accessed by users outside the network. (20)

      Geo-blocking is a method by which a user's access to content is restricted based on her geographical location. (21) Content providers often use geo-blocking services on their streaming sites to discriminate as to who can stream their content. (22)...