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Movie companies busy filing repeat infringer litigation now targeting VPNs

By Chris Cooke | Published on Tuesday 31 August 2021

The collective of independent movie producers that has recently been following the music industry’s lead and suing loads of US internet service providers for not doing enough to combat piracy has now taken its litigation into another realm, this time suing four VPN companies.

There are various reasons why people use VPNs – or virtual private networks – when accessing the internet, of course. And the VPNs themselves would probably be keen to stress that the primary motivation is the increased privacy and security they provide for people surfing around the scary old world wide web.

However, a user might actually use a VPN mainly to mask their identity when accessing or sharing copyright infringing content. Or so that they appear to be accessing the internet from another country, so to circumvent any web-blocking or geo-blocking that impacts on what websites and content they can access in their home country.

All of which makes VPNs a concern for copyright owners. And even more so to the movie business, where the geo-blocking of content is much more common. And some VPNs explicitly promote their services by telling potential customers that they will be able to get around any geo-blocking currently being forced upon the world by the movie and TV companies, so – for example – to access films and shows available on Netflix in one country but not another.

The new lawsuit filed with the courts in Virgina targets Surfshark, VPN Unlimited, Zenmate, and ExpressVPN, and states: “Defendants advertise their service for allowing their subscribers to bypass regional restrictions of streaming platforms to stream copies of copyright protected content including plaintiffs’ works from locations plaintiffs have not authorised the platform to stream the works”.

Of concern to the wider copyright industries are those people who use VPNs in order to hide their identities when using piracy services. The plaintiffs say that they have sent over 32,000 copyright notices linked to allegedly infringing conduct on the four targeted VPNs via a hosting company they all use, Virginia-headquartered Leaseweb Inc. Those notices were forwarded to the defendants, they claim, but action was not taken.

The VPNs will almost certainly argue that, because of the way they are set up, they can’t connect any of the specific copyright notices to any specific users. Which means, unlike an internet service provider, a VPN can’t take action against repeat infringers among its customer base, because it doesn’t know who the specific infringers are.

But, the plaintiffs say, that’s only because the VPNs have chosen to set up their systems in that way. The lawsuit states: “Defendants have the capability to log their subscribers’ access to their VPN service but purposely delete the logged information or set up their system so that the logged information is deleted so that they can promote their service as a means to pirate copyright protected works anonymously”.

Therefore, the argument goes, the VPNs could identify and take action against repeat infringers among their user bases if they wanted to. And, the plaintiffs add, they should want to, because dealing with repeat infringers is a requirement to benefit from the good old copyright safe harbour.

No workable repeat infringer policy means no safe harbour protection means the targeted VPNs – the movie producers conclude – should be held liable for their users’ copyright infringement. And the producers would like some lovely damages as a result.

While the recent lawsuits filed by this movie-making collective against the ISPs pretty much replicate the arguments previously made by the record companies (albeit with some extra sanctions requested), this new lawsuit throws up some interesting new questions – mainly technical questions – regarding the obligations of VPNs. Which means it will be interesting to watch if things proceed to court.