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  • Analysis, Gadgets - Written by on Monday, February 6, 2012 11:14 - 10 Comments

    AFL rights: Optus, Telstra in a techno-legal time warp

    This article is by Martin Hirst, an associate professor at Deakin University. It was first published on The Conversation and is re-published here with permission.

    analysis Telecommunications giant Optus managed to convince the Federal Court in Sydney this week that there’s a legal blindspot in relation to its download pay-per-view service.

    Telstra – given its business relationship with The National Rugby League (NRL) and Australian Football League (NFL) – had tried to prevent Optus from recording and re-broadcasting matches screened on free-to-air television. But Justice Steven Rares found Optus’s mobile television service didn’t breach the Copyright Act for a couple of reasons: Optus keeps separate recordings for each customer, and individual customers are responsible for requesting the recordings. So what’s going on here?

    To my mind, former rugby league coach Roy Masters – ever the shrewd observer – hit the nail on the head when he wrote the following for the Sydney Morning Herald yesterday:

    “They framed the copyright laws to protect the average punter from being sued for taping a TV show, including a football match on his home recorder. Now, their legislation is being used by Optus to sell a service.”

    Naturally, Telstra has concerns. The AFL’s A$1.25 billion five-year rights deal signed last season with Channel Seven, Foxtel and Telstra, included a A$153m payment by Telstra for the online broadcast rights to games. The NRL, likewise, expected a proportion of its next deal to come from internet rights.

    We’ve done nothing wrong
    Optus is not breaching current copyright laws by charging its customers for a record-and-download service that includes material in which its competitors hold some or all of the copyright.

    In court, Optus successfully argued its customers already access its competitors’ content via free-to-air television and record and replay programs when they choose to. This model of free distribution is embedded in our media culture. Now that old interpretation of the law – protecting home recording rights for the “average punter” – lets Optus monetise a data stream for its customers, using free content provided at great cost by others.

    The potential appeal issues confirm it’s about the income from broadcast, repackaging and online rights. The AFL and NRL are claiming a loss of trade. If they stick to their word and fight back, and Telstra joins in, it could cascade into a series of messy contract disputes.

    The whole issue is further complicated by the pay-TV siphoning regulations in which all litigants are also stakeholders alongside Foxtel. As everyone knows, from the Communications Minister Stephen Conroy down, the regulatory regime and legal framework for the digital economy and the new convergent media landscape is out of step with the machinery of change. We have a high-performance engine under the hood, but the tyres and the suspension can’t really handle the speed. We are living through a techno-legal time warp.

    The laws that worked to allow the “average punter” to record and replay TV shows using personal recording devices (such as TiVo) are now creating lucrative business opportunities that everyone involved in this legal stoush is keen to exploit. Monetising the click-stream is the main game in digital Dodge City and an analogue copyright law is not player-friendly for everyone. Contrast Masters’ old-hand wryness with the corporate-speak from Optus spokeswoman, Clare Gill:

    “This has been a win for Australians, for innovation and for the law. This is a product similar to things that you can do today. So we see this no different (sic) from any other personal video recording device.”

    As one punter wrote on sports website The Roar, it’s not a pretty sight to see communication giants slugging it out: “The battle between the telcos is getting ugly, and the sporting landscape is getting caught up in it.”

    At the heart of the legal issues is the Copyright Amendment Act of 2006, which specifically allows home recording of free-to-air TV content. At the time smartphones were not so ubiquitous and the download technology was clumsy. The law worked for its time. But not any more. The techno-legal time-gap kicks in when the technology perfects a new application that the old rules were not designed to deal with. Here, the respondents argue, the law is out of date.

    Under review
    A review of digital copyright law was announced late last year by the then Attorney-General Robert McClelland. This is way overdue and may still take some time to come to fruition. The problem we have is that nothing in the government’s much-vaunted and much-despised Convergence Review seems to deal directly with this issue.

    The interim report from the Department of Broadband, Communications and the Digital Economy (DBCDE) doesn’t even deal with copyright law and, in a section where you might expect to find some comment on it – chapter seven, entitled “Competition” – there is only hollow sentiment and principle:

    “Submissions to the Review addressing competition fell into two broad categories:

    • Some stakeholders argued the market is functioning effectively and existing ACCC [Australian Competition and Consumer Commission] powers are adequate when anti‑competitive situations arise (including in relation to content)
    • Other submissions expressed concern that emerging market situations could reduce competition in content and communications markets and that these situations will require a flexible operational response from the regulator.

    The regulator should be entrusted with suitable powers to deal with content‑related competition issues in rapidly changing markets.”

    Surely taking copyrighted material and on-selling it, as Optus looks set to do, is “anti-competitive”, even if a six-year-old loophole says it’s OK to do it.

    The techno-legal time-gap
    I first wrote about the techno-legal time-gap in 2006 in Communication and New Media: From Broadcast to Narrowcast, a book I co-authored with John Harrison. In that book we made the point that legal, moral and ethical debates and regulation lag behind the speed of technological change.

    My example at the time was peer-to-peer file-sharing, but within a year of the book’s publication, Napster and others were facing huge legal threats and were effectively shut down. The problem then migrated to The Pirate Bay and other BitTorrent) sites. As that appears to be resolved – to the commercial satisfaction of some players – a new front has opened up. The latest target for the anti-piracy forces is Kim Dotcom, the founder of the Megaupload “cyberlocker”. Dotcom’s repurposing of other peoples’ content has got him into serious trouble. Other service providers are also caught up in this net.

    Private matters
    The fights over copyright – or “copytheft” to some – are not the only digital skirmishes. The very concept of privacy – both real and online – has been blown wide open. Not only has there been rampantly criminal behaviour that exploited loopholes in phone security leading to a tsunami of scandal engulfing the Murdochs, it seems our total being is exposed online. Daily hacks and distributed denial of service (DDoS) attacks compromise data, much of it personal and all of it valuable in the surveillance economy.

    It’s not just credit card fraud and online dating scams – seemingly innocuous transactions – buying products through online vendors, for instance – leave a trail that is collated, digested, modeled and spat back as marketing or social enhancement experiences.

    It’s hard to see the “white hats” among the online baddies. But caught up in all of this today we have Julian Assange, a military whistleblower (Bradley Manning) and a collection of techno-savvy activists (Anonymous) attempting to bring down the military-industrial complex. They are all now caught up in the time warp. But the regulators are not having it all their own way.

    Paradox effects
    The Stop Online Piracy Act (SOPA) protests of the past few weeks forced a backdown in the US over so-called internet censorship laws.

    The time-gap exists across social media too. In 2006 Facebook was new and exclusive, Twitter was just around the corner, smartphones cost a fortune but the apps weren’t that good. In half a decade things have changed dramatically. These paradox effects will continue. The review of copyright law, a new round of privacy commission policy papers and the convergence review are all institutional attempts to deal with the contradictions, loopholes and inconsistencies.

    We see the same pressures exerting themselves on the Australian Press Council and other regulators too. Analogue models of regulation, control and ethical boundary-setting are no longer working smoothly. The Media and Entertainment Arts Alliance (MEAA) code of ethics was updated in 1997, but it too is now showing its age.

    Where are the guidelines for journalists on managing their social media accounts? Where is the advice on how to deal with lifting material from Facebook or YouTube to illustrate a story? I have collected several examples of these problems and discuss them on my blog (Ethical Martini). Ripping images from Facebook, for example, is a breach of both copyright law and an invasion of privacy (even if legal).

    None of these problems is easily fixed. They are global issues and the World Trade Organisation is one of several transnational bodies looking for answers. The danger here is that regulators go with a business-friendly commercial fix, rather than regulation in the public interest. At the heart of capitalist property law is the right to exploit: just ask Optus.

    Martin Hirst is the author of News 2.0: Can Journalism Survive the Internet?


    This article was originally published at The Conversation. Read the original article.

    Image credit: Back to the Future, Universal Pictures

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    1. Bob.H
      Posted 06/02/2012 at 5:18 pm | Permalink |

      Let us understand what Optus have done. They have set up al PVR in the cloud that their customers are able to hire to make recordings and playback free to air TV. It has absolutely nothing to do with copyright.

      I already have the legal right to buy a PVR and use it at my home to record the footy on free to air TV. I am fairly sure that it would be possible to connect the PVR to my computer time lapse the playback by two minutes over a WiFi connection and sit at the side of the swimming pool and watch the broadcast on a smart phone or similar device while sucking on a couple of tinnies. Sounds very similar to what Optus is offering I think.

      No one has as yet reported on the cost to the customer of the Optus service and whether it represents value for money. Nor have they explored how many people would actually be prepared to sit and watch a football game on a smart phone. Shouldn’t we be looking at the practicality of the service on offer before we start worrying about copyright infringement? It is possible that Optus have a grand total of three people using this innovative service to watch football simply because it is too expensive and the time limitations are too great..

      I acknowledge that there are problems related to the internet and copyright. There are also problems with they way copyright material is made available for the consumer. Surely our time would be better spent discussing and solving how these problems can be overcome equitably rather than getting excited about cases like Optus TV Now which is in reality a non-event.

      • Posted 06/02/2012 at 8:50 pm | Permalink |

        I already have the legal right to buy a PVR and use it at my home to record the footy on free to air TV

        The first thing I thought about here is what defines a service? Does it have to involve an ongoing cost or can it be a once off cost?

        The reasoning behind this is because I own a Tivo and it can record FTA TV, but the guide is provided by Tivo Australia and is an ongoing service that they provide.

        I am fairly sure that it would be possible to connect the PVR to my computer time lapse the playback by two minutes over a WiFi connection and sit at the side of the swimming pool and watch the broadcast on a smart phone or similar device while sucking on a couple of tinnies

        Playstation has had this functionally for years, PlayTV box into your PS3, then you can sit anywhere in the world on your PSP with it logged in over the internet to your PS3 and either stream live or watch recordings.

        It is possible that Optus have a grand total of three people using this innovative service to watch football simply because it is too expensive and the time limitations are too great..

        3 people prepared to watch football on their mobiles probably wouldn’t be too far from the truth, in reality I think the bulk of the users will be recording their evening TV shows then watching them on the train or wherever on the way to work to kill time.

        Now which is in reality a non-event.

        I wouldn’t say it’s a non-event, I will say the problem has been completely blown out of the water. What I hope it does represent is a new market so moving into an NBN type world online cloud based PVRs become more common place.

        One thing that gets me in this whole situation is why doesn’t the AFL (or NRL) offer some sort of online service themselves that’s available to everyone? I subscribe to NHL streaming (about $160US/season), but there are similar offers for MLB, NFL and NBA. The difference is the user pays for the service, and then some carriers, whether they be mobile or fixed service, provide the service of offering unmetered traffic for connections to these services. If the game is available locally then it’s blacked out on the streaming.

        The only problem I can see is that it would clash with Foxtel, but there should be no reason at the next media agreement in however many years time that problem couldn’t be sorted.

        • Bob.H
          Posted 06/02/2012 at 9:43 pm | Permalink |

          The “Now” you referred to was the end of “Optus TV Now” which is the name of the service that Optus is being sued over.

          My reading of the NRL and AFL model is that they want to sell the same game to each different delivery system. They sell DVDs, TV broadcast rights, Radio broadcast rights and Internet broadcast rights all to the same game. The model is a copy of the film and music models for maximising incomes.

          To give an example from the NRL last year. On Friday nights they had two games which were played at the same time. The free to air TV station was only allowed to show the designated NSW game live at 7-30pm in Sydney and then provide a delayed telecast of the Queensland game. In Brisbane it was reversed. The ABC could only broadcast live the game being played in the State to which it was broadcast.. This is the classic case of regional restriction that are widely used by the film and music distribution industries. Some people have claimed that this practice of regional restriction is a prime reason for Copyright abuse (piracy).

          I would be delighted to see sporting events offered by the controlling bodies for access on the internet.at a reasonable price. Unfortunately I doubt that they have enough foresight to abandon the decaying Hollywood model they currently support.

          • Posted 06/02/2012 at 10:57 pm | Permalink |

            To give an example from the NRL last year. On Friday nights they had two games which were played at the same time. The free to air TV station was only allowed to show the designated NSW game live at 7-30pm in Sydney and then provide a delayed telecast of the Queensland game. In Brisbane

            That is the anti-siphoning laws though, where everything on the anti-siphoning list must be shown on the main channel first and not a digital channel. Considering the number of digital TVs and/or receivers in the market now this is really a law that should be changed to allow live broadcasts on all the stations channels, and if broadcast on a non-main channel first it is replaced on the main channel later (to ensure people without digital tuners also have a chance to watch). This of course can be updated once digital TV is fully rolled out.

            It is of course, a separate argument to the topic at hand however.

    2. PeterA
      Posted 07/02/2012 at 1:31 pm | Permalink |

      Right there with you Bob,

      The author of the article (like Telstra, like the football codes involved – but not the judge!) are incapable of understanding the situation properly, because they are not looking at things virtually.

      What we have is a capability protected by copyright law.
      “Timeshifting broadcast television, initiated by a single end-user”

      This article labors under the mistaken impression that because someone is making money selling a service to do this, it is somehow different, from someone making money selling a physical box to do this.

      How doesn’t matter. How shouldn’t matter. If how mattered, then we would have a law for TiVo, and we would have a law for windows media centre, and we would have a law for MythTV, those laws would (as the author doesn’t realise he implies) have to include *where* the box is stored. Under whose authority the box can be accessed. It would also have to include the networks that the box could communicate on, it would have to indicate that reasonable steps must be taken to prevent access to those networks by everyone other than the owner of the box.

      In short, you don’t write copyright laws to protect *how* something is done. If you do, you have to write your copyright legislation every 5 years when they invent the next big technological revolution.
      You write copyright laws to protect *what* can be done. This is a prime example of copyright law working perfectly.

      Optus have just figured out a way to give you a VCR in the sky, and they should be praised for the foresight and innovation.

      • PeterA
        Posted 07/02/2012 at 1:34 pm | Permalink |

        And don’t get me started on trying to conflate a time-shifting device (the optus service) with copyright infringement.

        As if technological innovations like Peer-to-peer, bittorrent, or (a little shady) web businesses like the one run by megaupload has even a passing similarity with the provision of Tivo-like timeshifting services.

    3. Posted 11/02/2012 at 2:39 pm | Permalink |

      Hey, thanks, I appreciate these comments. I am intrigued by your arguments that Optus is not in breach of copyright by putting this service in the cloud and really just enabling the end-user.

      I still think my point about monetising the stream (how Optus makes money) infringes copyright.
      When you do it at home you are one individual -the right protected by law – by going through a third party (which is making a profit) aren’t you outside that protection?

      Martin H

      • Phil W
        Posted 18/04/2012 at 9:44 am | Permalink |

        Hi Martin,

        Just wanted to chime in with a reply, as Bob.H very succinctly hit the nail on the head.

        If TiVo released a “cloud” based service, instead of selling you a box to DIY they just sold you an app your TV could run that played whatever PVR’d content you selected from the guide, there would be no functional difference to the Optus Now.

        The reason paying Optus isn’t obscene is because they are offering a service – at a reasonable price – and presumably there is maintenance required to maintain a service. A physical box, like FetchTV or TiVo relies on the consumer to cover costs (ie, when the thing breaks).

        Seeing as everyone seems to get their business models from the good ole’ USA (in the form of RIAA and MPAA region locking), the AFL should have at least had enough gumption to steal the NBA’s licensing model – direct to consumer subscriptions.

        • Posted 18/04/2012 at 10:08 am | Permalink |

          Seeing as everyone seems to get their business models from the good ole’ USA (in the form of RIAA and MPAA region locking), the AFL should have at least had enough gumption to steal the NBA’s licensing model – direct to consumer subscriptions.

          Not just the NBA, all the the 4 major US sporting codes offer online streaming. As I mentioned up the top I currently pay and get every broadcast NHL game in up to 720p quality, either live or on delay, to my computer, PS3 or phone.

          I think the main reason we don’t have that here is the sporting bodies fear the reduced income from broadcast rights wouldn’t be made up for in paid subscribers.

          • Phil W
            Posted 18/04/2012 at 1:27 pm | Permalink |

            Hi Tezz., I agree with your 100%, and was just trying to be succinct when I only referred to the NBA.

            I just wanted to highlight that the AFL and Telstra only have themselves to blame for poor decision making with hashing out 5 year deals, especially when it comes to The Internet.

            Hindsight is 20/20 but I would expect more from both companies, given their attempts with Supercoach and Bigpond Movies respectively.

            Anecdotal topical allegory: Instagram went from $0 to $1 Billion in 14 months.




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