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AFL foils Optus TV Now, throws copyright law into turmoil

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Gadgets on the go

Adam Turner is an award-winning Australian freelance technology journalist with a passion for gadgets and the "digital lounge room".

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Adam Goodes pushes off Essendon's Kyle Hardingham.

Adam Goodes pushes off Essendon's Kyle Hardingham.

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?

0 comment so far

  • Optus hasn't been wronged at all. They were taking advantage of something they weren't paying for, for the purposes of profit. Whilst that may not have been illegal it certainly wasn't ethical. Although given Optus telephone marketing tactics its exactly what you would expect from them.

    Commenter
    TC
    Location
    Melbourne
    Date and time
    April 27, 2012, 11:44AM
    • Definitely, Optus has been wronged in this. Whether its Optus supply the recording infrastructure in the cloud or Samsung at my house, the act is the same. I record live TV (at home I can record Foxtel) and watch when I am ready. I am not broadcasting it for others or allowing others to make copies. I simply want to watch it when I'm ready. All those advertisers on Free to Air TV will feel the impact of this. Tracking of time shifted recordings has shown that they are getting far more bang for their buck. Take it away and ad revenue may fall. A bad day for Australian consumers...

      Commenter
      wathend
      Location
      SYD
      Date and time
      April 27, 2012, 11:56AM
      • "I record live TV "

        There's nothing wrong with that BUT if you were to sell that recording for someone else to watch then you are infringing copyright.
        And this is what optus were planning to do, Record a show then sell it to the consumer at a profit for themselves.

        So as optus were Breaking the copyright laws i cannot see how Optus has been Wronged?

        Commenter
        Jayson
        Location
        Penrith
        Date and time
        April 28, 2012, 12:14PM
    • The stricter the rules and regulations around copyright, the more it will drive people towards underground means of obtaining content.

      This time next year, we'll be in the same position we're in now. Not because of a lack of opinion on the matter, but a lack of will from the government to do anything. They certainly don't want to upset the lobby groups that may or may not be paying their bribes/wages, and they certainly don't want to be seen as being against the people who actually vote for them. We'll end up with this stalemate where it's easier for the government to do nothing.

      Commenter
      Cameron
      Date and time
      April 27, 2012, 12:00PM
      • Seems consistent to me. Recording at home using a DVD-R, PVR or computer using a USB tuner involves getting your content from an company that has paid for the IP rights to do provide it.

        The earlier copyright decision in favour of iiNet excused it because it was only a carrier, not the pirate content provider.

        Optus can't say it's making content available for home use because unlike a TV station or Foxtel, it doesn't own the content its providing. It's a carrier similar to iiNet, but the reality is that it's also the pirate content provider. Ask Hollywood or the recording industry what they do to pirates.

        If you're saying sport should be free, see how far that argument gets you with the bloke at the sports ground turnstile. Even when Rugby Union was genuinely amateur, you had to pay to get into the ground. Only racing allows people in for free, but that's because they know they'll get the punters' money in other ways. The sports bodies have always determined how spectators get to view their product whether it's live or electronically.

        Commenter
        Yuri
        Date and time
        April 27, 2012, 12:27PM
        • It's no different to recording to a DVD, USB stick or even VHS tape. Optus isn't offering content they didn't pay for, no-one pays directly for access to Free TV content, the content is paid for by advertisers. By recording and making that recording available for people at a later date they're aren't taking away any revenue from Free TV providers as the advertising is still there.

          Commenter
          Cameron
          Date and time
          April 27, 2012, 2:26PM
        • Totally wrong Cameron. The TV stations have paid big bucks for the content, and should't have it stolen by Optus for their own profit.

          Commenter
          TC
          Location
          Melbourne
          Date and time
          April 27, 2012, 7:00PM
        • @Cameron

          If that is the case then what is the point if a Ch9 buying the rights to the football (NRL).
          It would be cheaper to let someone else buy them the just offer a recording (with a few ads).
          Hence devaluing the original product.
          Or are you and everyone else suggesting i should start a business just copying shows for everyone (i'd like to get paid to sit in front of the tv all day), NO because that would break COPYRIGHT laws all over the place, Right?

          Commenter
          Jayson
          Location
          Penrith
          Date and time
          April 28, 2012, 12:26PM
        • Cameron is correctly across the original judgement. TC and Jayson, you need to read the details of the judgement. The point is, Optus made the recording available to a single user, by allowing them to record it and watch it at a later time. The service was in practice no different to using a DVR to record a TV program at home. The only difference, was that Optus, as a part of its TV Now service, gave people access to disk space (in the cloud if you will) to make their OWN recording of the program.
          This is clearly distinguished from broadcasting a recording of a program or making it available to multiple users at once. The whole way the TV Now service was structured, was to keep it well clear of that sort of system.
          I have not yet seen the full Federal Court judgement, but the facts have not changed.

          Commenter
          John
          Date and time
          April 28, 2012, 11:41PM
        • But the original judgement was wrong which is why the appeal was won!
          Optus are still selling a recording

          Commenter
          Jayson
          Location
          Penrith
          Date and time
          May 09, 2012, 4:26PM

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