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Optus loses out in sports copyright appeal

Update: Optus suspends TV Now service after Federal Court finds it in breach of copyright law.

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The Federal Court of Appeal has found Optus has breached copyright law in broadcasting sports matches.

The Optus TV Now service was broadcasting recorded football games on hand-held devices such as iPads and iPhones, just minutes after being broadcast on free-to-air television.

The court previously ruled that it was the subscriber, not Optus, who actually chooses to stream the event and that the action is similar to using a video cassette recorder to copy a television broadcast.

But an appeal panel of the Federal Court today overturned the decision, finding that Optus was responsible for the act of recording and it had it therefore breached copyright laws.

The landmark decision is a win for the AFL and NRL.

Telstra has exclusive online broadcast rights for both the AFL and NRL, and its latest online deal with the AFL for the 2012-16 seasons cost the telco $153 million. Media analysts said the initial ruling had made multi-million-dollar exclusive rights deals worthless.

Sporting bodies have also appealed to the federal government to make changes to copyright law that would disallow the use of the TV Now or similar services.

Optus is almost certainly set to appeal the decision to the High Court.

Update:  Optus spokeswoman Clare Gill said the company would review the judgment before deciding whether to appeal to the High Court.

“Optus is disappointed by the decision but we will ensure it is complied with,” she said.

“We are currently reviewing the decision and considering all options available, including appeal.

“While we will be suspending the TV Now service at this time, we intend to keep leading the market with innovative and differentiated digital services.”

Optus has 21 days to appeal.

Source: The Australian, ABC, The Age, AFR

9 Responses

  2. Well, Optus, you should know it’s wrong to steal something that belongs to someone else and make money from it by selling it to customers.
    Steal – as in – not pay for it and take it without authorisation.

  3. @Kenny: originally, I had the link at the top,and made it clear my comment was summarising the El Reg article, but that was lost when I edited to make it easier if David wanted to kill the link.

    But it’s still an interesting point because, from the judgement as written, it’s not at all plainly clear that Optus would still be in the wrong had they done something like that. The Copyright Act does allow for customers to use PVRs to time / device shift for personal use; the only differences would be (a) the location of the customer’s leased PVR (Optus PayTV vs loungeroom), and (b) Optus Mobile / OptusNet’s responsibility for what is carried over their data / mobile network.

    (b) is moot – phone operators and (currently at least) ISPs are not responsible for any infringing use of their networks, and time / device shifting by individuals is non-infringing anyway. (a) is still a possibility, but the decision is heavily based around the amount of Optus effort & control had over the equipment used. 1 user per physical recording is a different issue to multiple users per physical recording (which is how Optus arranged it), and not at all a simple question to answer. It’s certainly not answered by the Appeals Court’s decision.

  4. Foxtel has paid for copyright rom AFL, NRL etc. Subscribers have right to record it for home use, but not to make DVDs and sell them. Optus did not pay for the copyright or use of the programs or to sell it to subscribers.
    @davis- I watched the court decision live on ABC24. It was clear. Optus won the first round. Foxtel/Telstra/NRL/AFL went to appeal in the Fed. Court. They won the appeal. Now up to Optus to go to High Court if they wish. Meanwhile, Optus has stopped their service.
    @Tex- No, plainly, Optus cannot pirate a program and then make it available to their customers, no matter what way they try, with racks of PVRs or whatever. They don’t own rights to the program. Full stop.

  5. Andrew: “What if I consider my Foxtel IQ service … So are Foxtel supplying me, as a subscriber of theirs, an ability to record AFL/NRL for rebroadcast and thus a party in the action (a “maker” as the judges put it)?”

    The short version of the judgement seems to be that it’s down to how much effort Optus put in to making the copy (lots; more than just handing the customer a PVR and saying “mate, go for it”), and the fact that as they’re not a ‘private individual’ they don’t fall under the copyright exemptions that allow time-shifting for personal & private use.

    It may have been a different result had they installed racks of PVRs and leased them individually to customers (maybe just for the length of each recording / playback?) – but they built a system that recorded any requested programme just once, and re-distributed that single recording at multiple times to many customer individual customers who had previously requested it.

    (David, I know that 3rd-party links in comments are frowned upon, but The Register has a good consideration of this aspect of the judgement : theregister.co.uk/2012/04/27/optus_tv_now_commentary/)

  6. I wonder what the impact is of this decision to other areas. I haven’t had the time yet to read the full decision, but some of the quotes released make me think that some other recording mechanisms we use now could have suddenly been deemed to be illegal.
    One particular comments from the judges was: “Optus could be said to be the maker in that the service it offered to, and did, supply a subscriber was to make and to make available to that person a recording of the football match he or she selected,”

    What if I consider my Foxtel IQ service. The box itself is owned and supplied by Foxtel (if you read the fine print, you don’t actually own the box), the EPG used to schedule the recording is supplied by Foxtel, and the feed of the channels (including AFL on 7 and NRL on 9 if you are on cable like I am) is supplied by Telstra (cable) and Foxtel (transmission). So are Foxtel supplying me, as a subscriber of theirs, an ability to record AFL/NRL for rebroadcast and thus a party in the action (a “maker” as the judges put it)?

    The commentary so far does not seem to indicate the judges had concerns regarding the location of the viewer, or the transmission method (internet/3G), but more who was involved in the action (i.e. not just the home viewer but also Optus).

  7. @Kenny – I don’t believe that’s true. Optus commenced action in the Federal Court to seek (and was granted) a declaration that it did not infringe. The Full Federal Court today quashed that declaration. There hasn’t been, as far as I’m aware, any action from the other side seeking an injunction to halt the service.

  8. tim-The Federal Court has said that it is a breach of copyright so, yes, Optus can’t pirate – until, if or when any High Court appeal goes in Optus’ favour. The action of using a VCR in the home was settled long, long ago. It’s different if you then make those recordings available to “subscribers” outside the home.

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