Recently, Lightbox (Spark), MediaWorks, SKY and TVNZ threatened Slingshot, Orcon, Bypass Network Services and other ISPs with legal action unless they cease operation of Global Mode and other similar services in New Zealand. They believe Slingshot et al are “marketing and providing access to content they haven’t paid for [and] are operating outside the law and in breach of copyright”.

The case

Operating outside the law is a harsh term. So what is Global Mode and why do these 4 companies have an issue with it?

Global Mode is a service offered free with your broadband package on the ISPs mentioned above (for ease of reading, I will call them “the defendants”). Global Mode lets your computer appear to be in another country, giving you access to content that may be restricted by geography. For example, a YouTube video might be restricted to only viewers from the US. Using Global Mode you could pretend your computer was accessing YouTube from the US and you could watch the video.

Originally, the defendants marketed Global Mode as being for expats visiting New Zealand who wanted to access overseas content back home. This seemed tongue-in-cheek as many internet users knew exactly what it was for: accessing stuff we previously couldn’t.

The defendants aren’t the only ones offering this service. There are dozens of third party companies offering essentially the same thing. VPNs (Virtual Private Networks) allow you to hide where you are browsing the internet from (saying you are somewhere else) and they are a legitimate business. There are more reasons to mask your location than just to get at overseas content, but for simplicity I will focus on that.

The defendants launched an advertising campaign saying Global Mode was a way for New Zealanders to access Netflix, which at that time was not available to New Zealand subscribers, unless they used a service like Global Mode or another VPN.

What’s changed? Well, Sky and Spark have released streaming services, while TVNZ has revamped its service (I’ll call these businesses “the plaintiffs”). Their argument is that New Zealanders don’t have to go overseas, because there are options available here. Moreover, the digital broadcast rights for New Zealand have been purchased by the plaintiffs and they see the Global Mode as a way around their copyright claims.

The argument

In a statement, Sky said: “We pay considerable amounts of money for content rights, particularly exclusive content rights. These rights are being knowingly and illegally impinged, which is a significant issue that may ultimately need to be resolved in court in order to provide future clarity for all parties involved.”

That statement seems to be the crux of the issue. The plaintiffs own the New Zealand broadcast rights and they claim the defendants are offering a service to break those rights.

Geographical restrictions – called geoblocks – are a type of Technological Protection Measure (TPM). An easy way to think of them is like DVD region codes, if you purchased a DVD from the US and tried playing it in New Zealand, you’d get an error saying you were in the wrong country to view it. Despite you legally owning it.

On its website, the Ministry of Business, Innovation and Employment said: “The supply and use of devices allowing the circumvention of devices that merely control the access, such as regional zone access protection [geoblocks], would not infringe the TPM provisions. This means copyright users continue to be able to view or use legitimate non-infringing copies of works, such as DVDs or computer games.”

Essentially, you can legally get around geoblocks as long as you aren’t accessing illegal content. So in this case, the “device allowing circumvention” is Global Mode.

To put the legal argument from the plaintiffs in terms of DVDs: the plaintiffs have the right to sell DVDs in New Zealand, you bought a perfectly legal DVD overseas, the defendants sold you a DVD player so you can watch the content you paid for, and are now being threatened with legal action for it.

The defendants may have put the spotlight on themselves by advertising that by using their service you could join US Netflix. But it’s hard to argue that Global Mode itself is illegal.

The consumer

Consumers have seen what is available overseas and know what is possible. They know you can get high-definition content across a range of devices for a decent price. For example, Sky’s Neon service offers a small selection of TV shows and older movies at low quality, only on a few devices (including no support for any Android device), and charges more than nearly all of the overseas services (and its local competitors).

When you look at it like that, it’s very hard to see this action from the plaintiffs as anything but protectionism, herding consumers back into old models.

It’s like a tax simply for living in New Zealand. Remember these overseas services are subscription-based, consumers are paying for them. No one is getting anything for free, but consumers are always looking for the best deal, and right now, that is not from a New Zealand-based service. In its press release, Sky says: “This is not about taking action against consumers; this is a business to business issue and is about creating a fair playing field.”

Fair for Sky perhaps, but not for consumers. While Sky see it as attacking its competition, the result will hit consumers harder than anyone else. Some groups more than others.

If you have a visual or hearing impairment in New Zealand, your streaming options are incredibly limited. Jonathan Mosen is blind and an accessibility consultant who calls New Zealand’s streaming services a “disgraceful accessibility backwater”.

None of the plaintiffs offer closed captioning nor audio descriptions on their streaming services, including state broadcaster TVNZ. In July last year, at the Nethui conference, TVNZ said the reason there was no closed captioning was because it interfered with the system that served ads. In New Zealand, only the recently launched Netflix NZ service offers closed captions.

“What’s worse, a recent update to [TVNZ’s] iOS app has rendered the service inaccessible on my mobile platform of choice. I wrote to TVNZ the day the inaccessible version was released, and have yet to even receive a reply,” Jonathan says.

For these reasons, Jonathan uses a VPN service to access content from the UK, which has the audio descriptions he requires. While he doesn’t use Global Mode, losing this service would affect many hearing- and sight-impaired New Zealanders.

The competition

When the plaintiffs entered the streaming media market, Global Mode was already in place. So they knew some New Zealanders were accessing international content.

They have created services that aren’t, by most measures, as good as those offered overseas but expect consumers to stick with them – and the reality is most New Zealanders will.

Signing up for Global Mode or using a service like Unblock-Us isn’t easy and most people just want to turn their TV on and watch stuff.

The big international companies are Netflix, Amazon Prime Instant Video and Hulu Plus. Hulu Plus broadcasts TV, including new shows - many of which aren’t shown in New Zealand - for NZ$11 per month. Amazon Prime has the same HBO back catalogue as Neon, while offering a similar line-up of TV shows and movies to US Netflix, for roughly NZ$11 a month. The subscription also includes faster shipping on Amazon goods, access to Amazon music and a number of other services. US Netflix offers a much larger library than the NZ service for NZ$12 per month.

The plaintiffs argue these overseas companies are screening shows that are under exclusive licence in New Zealand and shouldn’t be accessible here. While that’s true for some shows, it’s also the case that there are shows that are withheld from NZ viewers by our broadcasters. For example, TVNZ has the rights to show Marvel’s Agents of Shield, new episodes of which are airing in the US, while in New Zealand we get a message that says “will return soon”.

Should this legal challenge be successful, it’ll be a huge blow to consumer choice. What is available overseas is just as fast, more accessible to those with impairments, in many cases easier to use, cheaper, and often of equal or higher quality to what is offered here. Why should New Zealand consumers be lumped with inferior products?

About the author:

Hadyn Green is a geek. He loves shiny new tech and the chance to try to break it. Because it's the kind of thing people ask, here is the tech Hadyn currently uses. Phone: iPhone 6. Tablet: iPad Air 2. Streaming Music: Spotify. Headphones: Beats Powerbeats Wireless 2 (for the gym) and Beats Studio noise-cancelling (for sitting at my desk and tuning out the world). E-Reader: Kindle Touch. Gaming: PS4, PS3, Xbox One and Xbox 360. Internet Service Provider: Snap.