Adam Goodes pushes off Essendon's Kyle Hardingham. Photo: Sebastian Costanzo
All bets are off when it comes to Australian copyright law.
Despite all of the AFL's huffing and puffing, few people were surprised when it and the NRL lost their legal challenge against Optus' TV Now service earlier this year. The football codes felt that TV Now infringed on their broadcasting agreements with Telstra by allowing Optus mobile customers to watch almost-live footy games on their phones. Yet Optus was protected by the same laws which let you record the footy at home to watch later. TV Now was just another form of time and place-shifting permitted under Australian copyright law. Or so we thought.
This morning the Federal court upheld an appeal against the earlier decision, deciding that Optus' actions are a breach of copyright. It found that Optus is at least in part responsible for the act of recording, not the end user alone. If Optus and the end user "acted in concert for the purpose of making a recording", the court ruled that the recordings can not be considered to be for "private or domestic use" -- thus losing their protection under law.
It's likely this case will go to the High Court but for now the decision leaves Australian copyright law in turmoil, casting doubt over many of our rights to enjoy content as we see fit. As the media landscape changes, you'll find more and more service providers acting "in concert" with end users to empower the act of time, place and format-shifting content. The line between "domestic" and "online" recording devices has already begun to blur, with a range of home entertainment devices relying on cloud-based service providers and infrastructure. If the law doesn't move with the times it will stifle innovation.
The media and sporting industries have been dragged kicking and screaming into the technological age, but today's decision could see us slide back towards the bad old days of Australia's media giants colluding with powerful interests to dictate what we watch and how we watch it. The AFL has a long history of expecting special treatment when it comes to broadcast rights and this decision will only encourage it to throw its legal weight around. It could open the floodgates for a range of organisations to cry foul and demand special treatment, and it will be interesting to see if other sporting codes follow football's lead or take a more progressive approach to tapping into new audiences -- audiences who are forced to watch the ads just like people at home.
A major review of Australian copyright law is coming next year and it's shaping up to be a major showdown between old media and new. Unfortunately politicians will probably take the easy way out and give in to the demands of powerful lobby groups rather than stand up for our rights.
What do you think? Has Optus been wronged or does it need to accept the verdict?