High Court doesn’t feel the Optus vibe


news The High Court has knocked back Optus’ request to appeal its lost case against sporting groups the NRL, AFL and rival telco Telstra over Optus’ TV Now cloud TV recording service, spelling the end of the ongoing legal action on the issue.

The Optus TV Now service allowed customers to have free to air television programs recorded when broadcast, using Optus’ centralised systems, and then played back at the time of a customers’ choosing on their Optus mobile device or PC. This technique is known as “time-shifting”, and attracted the legal ire of the NRL and other groups such as the Australian Football League, which had granted Optus rival Telstra an exclusive licence to make their broadcasts available online.

Late in 2011, Justice Steven Rares of the Federal Court had found in Optus’ favour in the case which the telco had filed against the NRL (later joined by Telstra and the AFL), stating that Optus’ technology was similar to recording a TV show using a video recorder in a loungeroom. However, in a new judgement after an appeal, the full Federal Court found several month ago that Optus’ technology could not come under the auspices of the Copyright Act.

Optus this afternoon confirmed that the High Court had not granted it leave to appeal in the case, although the issue will be considered by the Australian Law Reform Commission in its inquiry into the nation’s future digital copyright needs.

“We had hoped that the High Court of Australia would grant leave to appeal, but we are pleased that it will still be considered by the Australian Law Reform Commission. So this is a debate that continues,” said David Epstein, Vice-President, Corporate & Regulatory Affairs, Optus, in a statement.

“This is a very important public policy issue that still needs to be resolved to give clarity to both consumers and the industry. According to a recent study by Ericsson, over half of Australians are watching content on a laptop or mobile device and almost 40 per cent are choosing to download or stream TV or video on demand.”

“People are increasingly wanting to watch TV when they want, where they want and on what they want. But the law as it stands imposes an arbitrary distinction between technologies. Online storage is here and with us now so we think it’s time to confront the realities of that. We can’t shut ourselves off from the world. We don’t want to find ourselves facing a 21st century equivalent of being forced to store things on 8-track cartridges and audio cassettes rather than more convenient technology like online storage.”

Specialist technology law firm IdeaLaw has published a statement noting that the decision had “huge implications” for cloud computing, despite the fact that some might hail the decision as being a win for Australian sports.

“Essentially, anyone who provides a cloud computing service is now responsible for the activities of their users, as if they took the action themselves,” the law firm claimed. “Even if that action is legal for the user, it may not be legal for the service provider.”

IdeaLaw advised organisations operating cloud computing services to review any content licences they were party to and ensure that they catered “for every copy, transformation and transmission throughout your content delivery process”. “If you provide a cloud based PVR or streaming service we recommend you seek legal advice urgently,” the firm wrote.

I wrote the following back in May, and it still applies:

“Frankly, I think [all of the organisations concerned] are acting a little immaturely here. Optus can’t have expected that the AFL and NRL would take its cloud-based PVR service lightly, considering their multi-million-dollar deal with Telstra. Football is big money. But the sports codes are also acting in a silly manner; trying to deny Australians from accessing sports content through any medium they wish, and at the time of their choosing, is an exercise in futility. In a few years, when global intellectual property laws are finally re-worked to reflect real-world Internet usage, we will look back on this spat as a bad joke born of a flawed understanding of the digital environment, I would bet.”

I would bet that most Australians don’t want to have to be a Telstra customer to watch the AFL online and record it. With this in mind, hopefully this situation will get worked out eventually.

Image credit: Flying Cloud, Creative Commons


    • Thats a good point. As long as they want to BE the incumbent, they need to be seen as doing it in the country’s best interest.

  1. I would bet that most Australians don’t want to have to be a Telstra customer to watch the AFL online and record it.

    Except I’d bet Telstra DO want this. And with a monopoly given to Telstra thanks to the NRL deal, they don’t really have to worry about what people actually want….

  2. Of course these multi-million dollar contracts really are a sham in the first place. They say they are competitive in the bidding, but when Rupert’s holdings and influence along with the revenue streams of pay TV and his insertion into NRL after the Super League debacle, means he can easily outbid all the other bidders as the amount he’s paid comes back into his hands via other revenue streams due to the interconnections of the media and sporting boards. Why where they so fast to schism the sports early in the days as Pay TV was being assembled. The Game play was mapped overseas and Rupert knew what he had to do to control it all.
    Current PayTV type of Media is also PUSH media. Although the PULL media model is the preferred model of the Public, any attempts to create such a market are pounced on with ferocious energy all around the world. So we have to work out why the two models of Media distribution are in such diametrically opposed states. They both deliver entertainment. They still can both deliver content and can create revenue.
    So what can you and can’t you do with PUSH Media and the same for Pull Media? What works for only PUSH but fails in PULL? Of Course you can in a Push Market direct what your audience can and cannot see, but in pull, the audience will make that choice and it can be to your detriment financially. So is this really all about controlling the entertainment and information diet of the people making sure they have your angle on whatever and not someone else’s? Oh silly me! How could I miss that!
    Obviously The Ministry of Truth is a PUSH Media. It would fail in its mission as a PULL media in a competitive environment. Now who would desire such?
    Optus is attempting a PULL Media and Rupert and his friend’s will do anything to stop that.

  3. This is obviously a bad decision as it will affect cloud computing in this country, and what can be stored in the cloud.

    That said, I think it’s pretty clear that the case has pointed out problems moving forward with the copyright law as it stands now, and within the next few years we’ll see a rewrite of the copyright laws to allow products such as online PVRs to exists.

    This is simply a slight roadblock towards a much between and more versatile online future.

    • Your correct about the Copyright Laws. They’ve been corrupted and it is utilised as such by very powerful Corporations to their benefit and profit. No matter how the laws are rewritten, this action will continue till deregristration of the business entity is the only tool left in assuaging the lust for wealth growth (the ultimate drug) and flouting the laws for profit. Even then, do we believe and trust the Corporation will just die at the hands of a sole Nation’s Law? No.
      Unfortunately we are now caught in a trap of the Multinational Corporations and our lives are going to be now driven by their best interests, not ours. Yes, we voted fools in who gave them this power, so it is all our fault.
      Sit back, and I suggest detach from the Entertainment Business as it will be where the first round of victims will occur. If your immune to the “Call” of US Media, sit back and watch the saga unfold. It will not be pretty.

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