Internet Law

Are YouTube unblockers legal?

Internet users in Germany will know the message well: “Unfortunately, this video is not available in Germany because it may contain music for which GEMA has not granted the respective music rights.” There is a solution to this problem: the so-called YouTube unblocker.

Are YouTube unblockers legal? ©-ferkelraggae-Fotolia-Fotolia_31081868_XS

Are YouTube unblockers legal? ©-ferkelraggae-Fotolia-Fotolia_31081868_XS

YouTube unblocker

Many internet video platforms such as YouTube, as well as TV broadcasters utilise geolocation software. This enables the viewing in certain countries to be restricted and means that many YouTube users receive messages that certain videos cannot be viewed in Germany for copyright reasons.

To avoid such geoblocks, many internet users turn to proxy servers. But how do they work and are they legal? Christian Solmecke, partner at Wilde Beuger Solmecke explains the background:

“Each internet users surfs the internet using an individual IP address. Each address has a specific country code. When YouTube recognises a German country code, access to the video is blocked. Due to the continuing dispute between YouTube and the German collecting society GEMA, many videos remain blocked for users in Germany.

“The YouTube unblocker enables videos to be played using a technical detour called a proxy server. This creates an anonymous IP address which is disguised as a foreign address. YouTube cannot recognise that it is a German user that is trying to watch the video and so does not block it.”

Is the circumvention of a geoblock legal?

Christian Solmecke explains why he believes that circumventing YouTube’s geoblocks in this way gives rise to neither criminal nor civil liability.

Technical measures

“Firstly, there is the question of the technical measures used to avoid the geoblock. Under German copyright law, it is illegal to circumvent effective technical protection measures (§ 95a German Copyright Act). However, YouTube’s geoblock, is not an effective technical protection measure in the sense of the Act.

“The blocker can be avoided with the simple click of a button; cunning manipulative technical circumvention techniques are not required. The YouTube geoblock can therefore hardly be described as an effective technical protection measure.

“In addition, this legal provision requires that the copyright holder adopt such technical protection measures; i.e. the person who owns the video. YouTube is not such a person, but a platform that permits videos belonging to other copyright holders to be played.”

“On the other hand, the viewer may breach the term of use of the proxy server platform by using it to avoid a geoblock. If a YouTube video is only designated for viewing by users who are situated within the jurisdiction of the USA, a breach of the terms of use of the proxy server may present itself.

“While, it is conceivable that the platform could be closed down, this seems highly unlikely; and any other consequences of such a breach are likely to be minimal. Moreover, there is always the question of whether the terms of use were validly agreed with the user.

Temporary copy

“The second legal point is whether streaming copyright-protected videos via YouTube is legal at all.

“The basic position is that when a person downloads a video on YouTube they make a copy of it briefly in the buffer. Some lawyers argue that to make this copy, the copyright holder’s consent should be obtained. Other lawyers, myself included, assert that internet users do not need to obtain the copyright holder’s consent in this situation as they are only making a temporary copy, and this is protected by § 44a German Copyright Act.

“In any case, if there is any doubt on this point, individuals are generally entitled under German copyright law, to create private copies of copyright-protected material without obtaining the consent of the copyright holder.”

Conclusion

The legal position concerning the avoidance of geoblocks through the use of proxy servers is hotly disputed. To make matters worse, there are currently no clarifying judgments to offer guiding principles.

Christian Solmecke concludes, “The One thing that is certain, is that due to the time and effort involved, any meaningful pursuit of proxy server providers is unlikely.”

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Christian Solmecke is a partner at the law firm WILDE BEUGER SOLMECKE. He is the author of numerous legal publications in the area of internet and IT law. He is also an associate lecturer for social media law at the Cologne University of Applied Sciences.

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