The Territoriality Referendum

Abstract

Many Internet users have encountered geoblocking tools – tools that prevent users from accessing certain content on the Internet based on the location from which the users are connecting to the Internet. Because at least some users want to access such content, they turn to tools that enable them to evade geoblocking, to appear on the Internet as if they were located in another location, and to access the content that is available in this other location. So far these activities appear to be under the radar of intellectual property (“IP”) owners, perhaps because geoblocking evasion by users for the purposes of accessing IP-protected content can be viewed much like non-infringing de minimis importation in small numbers for non-commercial use (TRIPS, Art. 60).

This article points out that there are signs of substantial user desire to access content that is not available in the user’s location; this desire is evidenced, for example, by the recent proliferation of the numbers of and commercial success of space-shifting services that have advertised and/or have been used to access territorially-restricted television content from any place in the world (e.g., ManekiTV, Slingbox). It is possible that with more territorial restrictions imposed on content on the Internet and with courts finding at least some of the space-shifting services infringing (e.g., TVCatchup, Aereo) users will turn to geoblocking evasion even more than they have already. The article discusses the effects that such increased geoblocking evasion might have on the territoriality of IP rights – or the effects on at least some of the implications of the territoriality.

Keywords: territoriality, geolocation, geoblocking, geo-blocking, Internet, space-shifting, Aereo, copyright, intellectual property, geographical, territorial, cybertravel, television, anonymization, exit node, IP address