UPDATE Dec 13, 2012: I joined iTunes Australia over the weekend. 

Like iTunes US (of which I'm also a member), it sportingly lets you pay for content using iTunes vouchers rather than giving details for a local credit card. And no, I'm not breaking the law (see the Chapman Tripp comments below). Vouchers can be bought on eBay Australia or sometimes Trade Me.

My purpose in joining iTunes Australia: to buy Season 2 of Homeland (having missed the first few episodes, and not wanting to watch them on a laptop). Apple and HBO took my money. I downloaded the shows to my Apple TV box in NZ to watch on my television. 

As a bonus, I discovered iTunes Australia also had Game of Thrones Season 2 for sale (it's not on iTunes US until next April; iTunes NZ offers no TV shows).

I bought that too.

Each series was about 16GB in HD, and is now stashed on my generation 1 Apple TV (Apple's $159 wi-fi widget for watching content downloaded from iTunes on a regular television. As I've written before, I cling to my gen 1 Apple TV because it has a hard dive, unlike later models that stream content or pull it off a laptop or other device with a hard drive).

Everybody's happy. 

Except maybe Sky TV.

The Wall Street Journal reports today that Apple TV sales have been modest (around 1 millon in the past quarter). The company is said to now be looking at making its own television set, and is in trials with Foxcon (which recentlly began making big screen LCDs TVs) and others.

It'll be interesting to watch this space, but as the Journal notes Apple has been circling this space for years (even if Tim Cook now seems to have greater urgency). And, as with so many things content-related, it hinges on what deals can be stuck with rights holders and/or regional TV providers - most of whom trying to hold back the new technology tide that will someday overwhelm their cosy regional content distribution monopolies.

New Telecom boss Simon Moutter thinks a day will come when technology change means the likes of HBO renegotiate their regional distribution deals on different terms.

What a happy day that will be.

As Netflix has shown by eclipsing BitTorrent in US data traffic, when people are given the chance to do the right thing, most do.

Sky TV boss John Fellet says his company has no monopoly, because so-called over-the-top services like iTunes represent a clear competitive threat over the next few years.

To a degree, he might just be trying to get the Commerce Commisson off his back as it continues its endless investigation into whether the nature of Sky TV content deals prevent rivals (which would include the ill-fated Quickflix) from gaining a critical mass of content.

But the irony is, he's right.

(Don't panic Sky TV investors, as long as the company keeps its exclusive rights to live All Blacks rugby - don't look too hard at Australia with its anti-siphoning law - and offers the most user-friendly way to watch and record other content, it will continue to prosper.)

Follow @ChrisKeall

ckeall@nbr.co.nz

The Game of Thrones effect: Season 2 debut sends NZ-US internet traffic through the roof

UPDATE April 5, 2011: I was just talking to the boss of one of our largest ISPs.

He said international data traffic went through the roof last Tuesday. As in completely blew the lid off. 

There a huge spike in data being sucked down from the US.

That was the day when the first episode of Game of Thrones, season two, debuted on HBO in the US (Monday US time).

Season two doesn't start on Sky TV until April 16 (although there was an iSky preview on April 4).

So it seems a huge number of Kiwis could not wait for April 16.

Or, if they're not Sky TV subscribers, were not willing to wait a half-year or longer to appear on disc (and, alas, in terms of standalone download services it will never appear on NZ newcomer QuickFlix, despite HBO's $A10 million investment, due to Sky TV having rights locked up. Same goes for the hapless iTunes NZ).

I'm not willing to break the law, but I am willing to break Apple's terms and conditions to commercially access the US version of iTunes (see details below), whose movie and TV section boasts everything iTunes NZ lacks, including a good section of movies, and new-release HBO shows.  And it can all be streamed from your broadband internet connection to your regular television, in high def, via a $159 Apple TV gadget.

iTunes US is not offering Game of Thrones season two yet (or it seems rivals like Hulu) - so I'm guessing a bunch of that New Zealanders downloaded it illegally.

You could see on social media that many were torn (including one member of John Key's staff). They didn't want to break the law. But, boy, they loved their Game of Thrones, and it was just so tempting to download a dose.

Most would pay if given the chance, as the commercial NetFlix has proved in the US by moving ahead of BitTorrent in traffic terms.

But if they're not given a commercial download option, and they need it now, well .... look at what happened.

How long can the entertainment industry stay at war with its own customers?

A lot of people have asked me how iTunes US is going.

It rocks. It's changed my life, or at least the TV and movie and part of it.

It's a wonderland of great, up-to-date content (ironically, a Games of Thrones seasons one delay was one of my few disappointments; it only recently came available).

And my ISP and Apple are doing very nicely from me, thank you very much, as I repeatedly stock up on iTunes credit, and top up my data cap.

Is it legal to buy from iTunes US? Probably.

Dec 16, 2011: I’m trying to be a good digital citizen.

But it’s hard.

Take Game of Thrones, Season 1.

While others downloaded it from illegal sources, I ordered the series from Amazon ($63.99 after shipping, thank you very much). 

That was on September 1.

Amazon recently emailed to say it would arrive in March or April.

I’m happy to give Game of Thrones’ producers (HBO) my money.

But they won’t take it.

It’s not copyright that’s being protected here, by Sky TV’s programming monopoly.

I mentioned my dilemma on Twitter.

A prominent blogger, and an IT industry exec both emailed me about an interesting alternative for commercial downloads: buying from iTunes US – which offers a far larger collection of movies and TV series than iTunes NZ (in the latter category that’s not hard; iTunes NZ offers none).

I had assumed you needed a US credit card.

But, in fact, iTunes US lets you purchase content without ever supplying credit card details if you have iTunes US gift vouchers – and a number of sites have sprung up that will buy iTunes US vouchers on your behalf that you can then redeem from NZ (you pay the middle men using Pay Pal). You can also simply buy iTunes gift cards through any mainstream US e-tailer like Amazon - although you may find a bar on shipping to NZ - or via eBay.

I was dubious. Who the heck was behind these sites?

But the people who recommended them had both been using them long term.

“It’ll change your life,” said one.

It would. Imagine being able to buy a movie, or TV episode, whenever you wanted, rather than wait months for it to (maybe) appear on iTunes NZ, iSky (which holds local on-demand rights – or at least first-refusal rights on most content) or another local source.

It would make sense for me, and the US artists I’m paying.

But would it be in keeping with New Zealand’s copyright law?

In short: probably.

(See my correspondence with Chapman Tripp’s Justin Graham below (I also consulted a second lawyer, who did not want to go on the record but agreed with Mr Graham. A similar legal situation applies to another jape: signing up to a US commercial streaming service like Netflix from NZ using  technology that masks your true internet address and location.)

But it would break Apple’s terms and conditions. A spokeswoman for Apple confirmed to NBR yesterday that you have to be a US resident to buy from iTunes US (and an NZ resident to buy from iTunes NZ).

Whether Apple would want to go to war with its own customers, who are willing to pay for content, is another matter.

The company says it uses compliance technology, but the spokeswoman wouldn’t comment on what it entailed, or whether it was actively used. The experience of the two people who messaged me suggests it’s not.

You’ve also got to wonder why iTunes US lets people buy content without validating their identity with credit card details (Apple's support forum even helpfully guides you through the process. I put the NZ consulate in New York as my address because, heck, it represents all New Zealanders, and I'm a taxpayer). Or at least, NZ content rights holders would have to wonder. I guess the answer is, simply, that to Apple, a New Zealander’s money is just as good as an American’s.

RAW DATA

Hi Justin,

I was musing on Twitter last night about the lack of commercial download options in NZ.

A number of people suggest I try a site that lets you buy Apple iTunes vouchers for iTunes US - which apparently lets you sign up to the US version of the service (which has many more movies and TV series for sale than iTunes NZ) without the need for a US credit card.

http://www.mediawob.com/
http://itunes-express.web.officelive.com/default.aspx

[UPDATE: One NZ-based iTunes US customer told me he simply uses any mainstream US e-tailer to buy iTunes US vouchers. You can also get them through eBay.]

An NZ based IT exec told me he's been using one of these sites long term, and it works well. So did others.

Apparently the practice - which I'm probably going to write about for NBR - breaks iTunes terms and conditions (Alex is checking). And I guess a local broadcast/download rights holder like Sky TV would not be thrilled.

But would it be illegal?

May also cover the parallel debate about using a VPN to access services like Netflix (there's already been some legal commentary on that question on PC World - here).

Any comments will be on the record unless you indicate otherwise.

Thanks,
CK

Hi Chris

A really interesting question!

As a matter of copyright law, I’m inclined to think it is a similar situation to parallel importing (in the sense that the material has been put on the market with the consent of the copyright holder in another jurisdiction and the downloader is effectively the “importer”, taking advantage in this instance not so much of price, but of availability).

It could be argued that commercially downloading in this way amounts to circumvention of a technological protection measure (which is unlawful under the Copyright Act) but I don’t think bypassing a local content provider meets the required definition. What the downloader is doing is circumventing a service, not a particular protection measure (such as a password), although particular circumstances may differ.

Equally, the definition of a technological protection measure expressly excludes a system to the extent that it controls geographic market segmentation by preventing the playback in New Zealand of a non-infringing copy of the work (which is arguably the position a downloader here faces).

As a result, as a matter of copyright, there might not be infringement because of New Zealand’s position on parallel importing and overall political position we tend to adopt here that we want more content available more cheaply. And since the copies being downloaded are genuine copies, there shouldn’t be any issue with the “3 strikes” law either.

However, if the downloader is breaking the terms and conditions of trade of a local content provider, than that would be a breach of contract and actionable by the local service (and so unlawful). Whether the local service would consider it commercially prudent to take action is another matter – it’s an unattractive position to sue people to keep them bound to a less useful service.

What we may end up seeing ultimately is a situation similar to the format-shifting problem, where everyone was doing it, but it was technically a breach (although in that case of copyright) until the law caught up.

Kind regards
Justin

JUSTIN GRAHAM
PRINCIPAL
CHAPMAN TRIPP 

Another lawyer, who did not want to go the record, offered:

Geez how many times must I correct people who think that circumvention of a TPM [technological prevention measure] is a breach of copyright in itself. ITS NOT!!

The TPM provisions “outlaw” trafficking in TPM circumvention devices but say nothing about using them.

So, combine that with the fact, correctly pointed out [by Chapman Tripp's Justin Graham, above], that zone controls are explicitly excluded from the TPM regime and I think the answer is pretty clear.

The only recourse would be via the terms of use. Not sure what is meant by “local” terms of use. There are no NZ terms of use that are involved here – the only terms of use that could apply would be the US provider’s ones. They may say something about zone controls but often will not. Even if they did say that buying outside the US was a breach, having paid the legitimate price for a legitimate copy,

It’s hard to see where the damage is. Yes, in theory, the local exclusive distributor might be able to take action I guess, like the old days when perfume importers used to take action in respect of grey market imports of perfume sourced legitimately overseas but, unlike those actions, there is no central importer to target so action against each individual who might does this would be uneconomic.

Also, the explicit exclusion of zone controls might make a court decide that, in fact, the intention was to allow this sort of activity so by no means open and shut even if exclusive NZ distributor did take action.