Copyright and Control Freaks

The EU's highest court has ruled that publishers who use state-of-the-art geo-blocking are not liable for copyright infringement, even when users bypass their restrictions with a VPN. The ruling, which was handed down in the landmark copyright battle involving digital copies of the iconic Anne Frank diary, also shields VPN providers from liability.

While the diary's importance is universally recognized, the accessibility of its digital manuscripts has been at the centre of a Dutch copyright battle that eventually made its way to the Court of Justice of the European Union ( CJEU ).

The legal dispute was triggered by differences in copyright protection terms in the EU. Parts of Anne Franks manuscripts remain protected in the Netherlands until 2037, while the same material entered the public domain in Belgium and many other EU member states years ago.

To navigate these conflicting laws, the Dutch Anne Frank Stichting published a scholarly edition online using state-of-the-art geo-blocking to prevent Dutch residents from accessing the site. Visitors from the Netherlands and other countries where the work is protected are met with a clear message, informing them about these access restrictions:

The scholarly edition of the Anne Frank manuscripts cannot be made available in all countries, due to copyright considerations=

Despite these blocking measures, the Swiss-based Anne Frank Fonds was not pleased. The Fonds essentially argued that if a block isn't 100% bypass-proof, the content shouldnt be online at all.

The Dutch lower court dismissed this argument, stating the defendants had taken reasonable measures to prevent access from the Netherlands. The Fonds appealed, without result, and the case is now heading back to the Dutch Supreme Court, which referred several questions to the EUs top court to decide the fate of VPN neutrality and the sufficiency of geo-blocking.

In January, Advocate General Rantos published his opinion concluding that geo-blocking is a sufficient measure and that VPN providers are neutral intermediaries. That opinion was not binding, but it set the tone for what followed.

Last week, the CJEUs Second Chamber delivered its final judgment. The Court ruled that a work thats in the public domain in some EU member states, but still under copyright in another, can be published on a geo-blocked website without being considered an infringing communication to the public in the protected country.

The Court recognized that geo-blocking can be circumvented with a VPN, but that is not the decisive factor. If a publisher specifically chose to use a state-of-the-art geo-blocking to block visitors from a specific country, it is clear that these people are not the intended audience.

The Court also rejected the idea that publishers should be required to use stricter access controls, such as subscriptions or login requirements. Imposing those measures would disproportionately restrict free access for users in public-domain countries.

VPN providers are also not liable if they are used to bypass state-of-the-art geo-blocking measures. The EUs top court sees VPN providers as neutral intermediaries, referring to previous rulings where YouTube and Uploaded were not held liable for pirating users. As an intermediary, a VPN itself simply acts as a secure, neutral routing tool thats not communicating anything to the public.

This conclusion is significant. It effectively confirms that the EUs highest court does not see VPN providers as copyright infringers simply because their technology enables users to bypass geographical restrictions. The Broader Fallout

Video game distribution platforms Steam and Itch.io have been removing a series of video games with adult themes, including sexual content and extreme violence, citing pressure from payment service companies. However, Mastercard, one of those companies, denies forcing these platforms to limit the distribution of such games.

Mastercard released a statement claiming that it has not requested any restrictions on the activities of game creators sites and platforms, despite accusations from Steam and Itch.io to the contrary. The company stated:

Mastercard has not evaluated any game or required restrictions of any activity on game creator sites and platforms, contrary to media reports and allegations. Our payment network follows standards based on the rule of law. Put simply, we allow all lawful purchases on our network. At the same time, we require merchants to have appropriate controls to ensure Mastercard cards cannot be used for unlawful purchases, including illegal adult content.

This situation arose after a campaign by the Australian moralist campaign group, Collective Shout pressurised game platforms to block games referencing  rape and incest.

Game developers argue that the refusal by payment providers to allow people to freely purchase blocked content amounts to censorship. After all, pornography is not illegal, and works that glorify sexual violence are already prohibited.