Debate about copyright and virtual private networks (VPNs) has reached such a pitch in Australia that at least one voice wants a policy that, taken literally, would have the effect of closing down Netflix in this country.

I don't mean “stopping Australians from accessing Netflix US via VPNs”, I mean “bye-bye Netflix, go home to the US, nice to have met you”.

Here is what Cordell Jigsaw Zapruder managing director Nick Murray told media site Mumbrella:

“It should absolutely be regulated somehow to make it so people in Australia shouldn’t use VPNs”.

While The Register's readers are warming up their keyboards to remind the world that VPNs were originally invented to provide secure remote access to corporate servers, Vulture South will first address why a VPN ban would kill the Internet content industry.

The hint comes from the Wikileaks Sony document-dump, here. As Michael Geist notes, Sony wanted Netflix to block VPN users, but acknowledge that such a course of action isn't easy or perfect.

Deliciously, it's the Sony-Netflix contract (PDF) that gives us another key insight into the demands of content owners. That contract specified the following:

1.1.1. Unencrypted streaming of Included Programs is prohibited.

1.1.2. Unencrypted downloads of Included Programs is prohibited.

1.1.3. All Included Programs shall be transmitted and stored in a secure encrypted form. Included Programs shall never be transmitted to or between devices in unencrypted form.

In other words, Sony requires that Netflix use the same encrypted tunnel mechanism that protects corporate remote access to keep its content private between server and Internet subscriber – and, for that matter, between two Netflix server-farms replicating over the Internet.

A VPN, in other words.

We can also safely assume that all content owners have the same requirement, not just for Netflix but for everyone else.

Without VPNs, there's no content delivery over the Internet – unless, of course, the content owners like Nick Murray counter along the lines of “that's not what we meant”, and explain that they're talking about a service rather than a technology.

More than a gotcha

Beyond the “gotcha”, there's a serious point, because among those making or influencing policy in Australia, there's precious few who can clearly distinguish between a technology (that required to create an encrypted tunnel over the Internet) and a service (the VPN provider).

The VPN provider's technical role is to make it easy to set up and use the product; the business model for some is to land that traffic on the public Internet in the USA.

It's obvious that a technology ban would fail, simply because while the government might be collectively woolly about technology, it'll listen to the entire business community saying “don't ban encryption, you fools”.

Vulture South would contend that a legislative attempt to ban the business model – as is set out in the government's proposed copyright law amendment – will also fail.

It's not merely the “whack-a-mole” effect of trying to keep up with the (for example) the movement of BitTorrent directories between different IPs.

It's that the technology itself is doing what technology does: becoming democratised – made simpler, more available, and open source.

As just one example, here is a VPN project, SoftEther from the University of Tsukuba, Japan. In an era of cheap cloud hosting, anyone with the ability to read instructions) can already DIY a VPN to drop their traffic in America.

(Hilariously, as a side-observation, El Reg notes that SoftEther's Website uses the obsolete TLS 1.0, AES_128_CBC encryption, with the outdated SHA1 for message authentication.)

It won't be long before someone wanting a VPN will be able to drag an icon into a pennies-a-day cloud host. Try banning that.

This dooms the federal government's hope to use the Copyright Act to ban VPNs – even in the limited case that the “primary” purpose is infringement.

Perhaps communications minister Malcolm Turnbull, who is arguably the second-most tech-savvy member of both houses of federal parliament, behind Greens senator Scott Ludlam, realises this.

Even with the “ban the VPN” amendment before the house, Turnbull recently (about nine days ago) updated his Copyright FAQs document.

That document retains Turnbull's opinion that VPNs are legal:

“The Copyright Act does not make it illegal to use a VPN to access overseas content,” he writes. “While content providers often have in place international commercial arrangements to protect copyright in different countries or regions, which can result in ‘geoblocking’, circumventing this is not illegal under the Copyright Act.”

The Australian Communications Consumer Action Network reckons the Copyright Act amendments should let citizens object to proposed blocks.

That's a worthy notion, but it probably misses the point. The whole amendment reflects the content industry's self-contradictory wishes, and should be ditched.

Even if the content owners are themselves confused, enforcement of commercial contracts is where the access-to-content debate should end.

After all, if – as Fairfax reports – HBO can drop Australian customers, Netflix probably can as well.

Then we'd merely be forced to set up our own VPNs and obtain American-domiciled payment mechanisms. ®