An infringer with no name

With enforcement efforts ramping up and the law taking on previously unexplored territory, infringers are fighting back, as Barney Dixon discovers

Virtual private networks (VPNs) often go undiscussed when it comes to intellectual property infringement, but that doesn’t mean their presence has gone unnoticed. VPNs encrypt a user’s traffic and route it through an alternative exit server before reaching the internet. This changes the user’s IP address, stopping any web page from determining the user’s location and ISP.

VPNs are mainly used for security and anonymity, especially in countries such as China, where they are used to overcome the Great Firewall.

The problem with VPNs is that there is a fine line between infringement and ethical circumvention. Infringement doesn’t define the technology, but in recent years its ability to mask anonymous streaming and file sharing has become a source of ire within enforcement circles.

But do the benefits outweigh the risks? According to one provider of the technology, NordVPN, they do.

Although infringement through VPNs is a problem, “providing a security measure against cyber crime, illicit monitoring, and authoritarian governments has a huge positive effect”, Ruby Gonzalez, head of communications at NordVPN, argues.

Despite this potentially positive effect, infringement is still a factor when weighing up the pros and cons of VPNs. Helen Saunders, head of intelligence and operations at Incopro, says VPNs are a “viable method of committing infringement online”.

Initially, VPNs were more suited for web-based activities, such as streaming or buying and selling counterfeit goods. These days, VPNs can also be used for peer-to-peer file sharing, or circumventing site blocks that are put in place to prevent infringement.

Saunders says VPN providers could monitor the traffic of users and apply a form of site block, but this would defeat their purpose of providing anonymity for users.

“It is clear that there is a balance that needs to be struck and that all parties need to be able to use technology in ways that help them but do not do so at the expense of others,” she says.

NordVPN is dedicated to remaining as an option for privacy and safety, regardless of the potential for bad actors.

Gonzalez says: “It’s like with lots of other tools and services all over the world throughout human history. You can start a fire to keep your family warm, but you might burn down your neighbor’s house.”

“We can’t make people moral or honest (although that would be nice), and that means someone may use a VPN service to do something bad,” Gonzalez adds. “Nevertheless, we will not give up the safety of human rights activists, journalists, government critics in countries like China, Saudi Arabia or the Philippines only because there are some not-so-nice people out there doing something shady. We believe that the right to one’s privacy is a basic human right and we stand for our beliefs.”

“That being said, we don’t support breaking the law in any way. However, if we started tracking our customers, it would defeat the whole purpose of the service.”

Enforcement effectiveness

Judging whether VPNs blunt the effectiveness of online enforcement is difficult. A recent government sponsored anti-piracy programme in Portugal showed that ISPs can reduce traffic to infringing webpages by nearly 70 percent, if they are allowed to automatically block such sites.

According to Incopro, which assessed the impact of the programme, Portugal’s site blocking orders resulted in a 69.7 percent reduction in users accessing large-scale piracy websites.

But VPNs and more general proxy services are not included in such studies as they are services aimed at online privacy.

Saunders says the brand protection specialist does factor proxy websites and alternative domains in its analysis, although they have little effect beyond sites such as The Pirate Bay, which have a large fanbase.

A cursory glance at Google results reveals countless forum posts and articles on how VPNs can be used to sidestep enforcement. Many internet users ask what the best VPN is to use for peer-to-peer file sharing, while an article from copyright news site TorrentFreak provides evidence that VPN use can help users to avoid infringement lawsuits.

One service, BestVPN, which offers price comparison on various VPN providers, even offers a way for users to bypass the recent Premier League blocking order in the UK.

The Premier League acquired the order, which requires UK ISPs to live-block illegal streams of Premier League matches, at the end of July this year. The Premier League trialed the initiative in the final two months of its 2016/2017 season and revealed that it had been “highly effective” with more than 5,000 illicit server IP addresses blocked.

BestVPN says UK residents can continue watching those streams using a specific “Premiership VPN”. Its website offers several ways to bypass the blocking order, giving users a detailed description of how to use networks to access infringing streams.

Once users are “connected to a reliable VPN [they] also have digital privacy”.

“That means your ISP has no clue what you’re doing online. Thus means [sic] you can watch pirated streams if you want to: the choice is yours (though, of course, we can’t specifically endorse this).”

BestVPN even provides users with an update on the new rules for Kodi IPTV boxes in the EU, which made pre-installed software for piracy illegal. BestVPN says users can bypass this with a VPN.

Saunders argues that VPNs “do not have a big impact on enforcement generally ... there are methods to get around this as other information can be gathered about an infringer from other sources, for example, social media.”

She adds that Incopro itself does track trends in relation to VPNs to see if site blocking is driving their use, but this isn’t “something we’ve observed happening”.

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