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<big>**Optus wins landmark web broadcast rights case**</big>
Lucy Battersby February 1, 2012 - 3:29PM
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Optus has won a landmark court case which shatters Telstra's stranglehold over internet sports broadcasting and poses an immediate threat to the Australian Football League's recent broadcast rights deals.
Justice Steven Rares of the Federal Court in Sydney this afternoon decided Optus will be granted court protection from copyright claims by the AFL, Telstra and National Rugby League over its TV Now Service.
While Telstra and the sporting bodies are likely to appeal the decision, this will not happen before the AFL season starts on March 24 and the NRL season starts on March 1.
Optus customers can record and watch matches screened on free-to-air television and replay with delays as short as two minutes on some devices. This is in direct competition to Telstra’s exclusive deal with the AFL and NRL to broadcast matches live over the internet.
'Modern interpretation of the video recorder'
Justice Rare’s decision was based on time-shifting provisions in the Copyright Act which allow individuals to record and watch a show at a more convenient time.
Optus’s lawyers successfully argued that TV Now was a modern interpretation of the video recorder because a separate recording was made for each individual. Optus stores the recording at a data centre and sends it to individuals via the internet on request - known as cloud storage.
The decision clarifies the legal interpretation of Australia’s Copyright Act, which was written before internet broadcasting became common.
However, it also devalues the exclusive internet broadcast rights for sporting bodies in Australia.
Justice Rares found that when Optus customers ‘'clicked'’ on record they were programming a recording for their individual use. Therefore Optus was not re-broadcasting copyrighted material to the public.
‘‘I found that such a recording or film was made by the user to watch it at a time he or she considered to be more convenient than when the live broadcast occurred, even if only by minutes.
‘‘I decided that Optus’s TV Now service did not infringe copyright in the broadcasts of the AFL and NRL games in the particular ways that the rightholders alleged," he said.
"However, some other issues may still need to be resolved. These include whether Optus infringes copyright because the technology used to make a recording in the format suitable for certain Apple devices creates and stores six temporary files of 10 seconds duration every minute, and then deletes the first 10-second file as the latest one is added one minute later.’’
Appeal is possible
Telstra, AFL and NRL were ordered to pay Optus’s costs. Leave has already been granted for the parties to appeal the decision to a full bench of the Federal Court.
Justice Rares noted that the case is not fully settled until the parties have resolved the issue of near-live streaming. Optus's equipment uses four streaming methods, one of which is Apple QuickTime Streaming. This allows Optus to replay recordings at delays of as little as 60 seconds. Users cannot watch recordings until a show is finished on other devices.
The parties agreed to treat this issue separately, and Optus must still convince the court that this service does not infringe on the AFL or NRL's copyright. If this decision falls against Optus it may have not have court protection to sell TV Now on Apple devices and may be liable for copyright infringement.
Speaking outside court, Telstra spokesman Craig Middleton said the company was considering its options including an appeal to the full court of the Federal Court, and did not rule out that there may need to be legislative reform in the copyright area.
''This is an early stage. We remain committed to protecting the content rights in which Telstra has invested, in which the sporting bodies rely for income and which ultimately flows through to the fans of our sports,'' he said.
When asked whether Telstra would tear up its $153 million contract with the AFL, he said: '' I don't think that is the case at the moment, what we're focused on is bringing live AFL coverage through our online and mobile services this year.''
He also did not believe negotiations with the NRL for rugby league rights would be put on hold because of the court ruling.
'Win for innovation'
Optus spokeswoman Clare Gill said the decision was ''a win for Australians, for innovation and the law''.
''Optus is very pleased with today's outcome. TV Now is a personal video recording device that allows Optus customers to record free-to-air television and replay it at a time more convenient to them. That is how the product was developed and we're pleased the court found that today.''
When pressed whether it was unfair to the rights holders that Optus subscribers could watch live events with only a two-minute delay, she said. TV Now was ''no different from any other personal video recording device'', and that the 2006 amendments to the Copyright Act ''allowed for these type of innovations''.
http://www.theage.com.au/afl/afl-news/optus-wins-landmark-web-broadcast-rights-case-20120201-1qsqi.html
Lucy Battersby February 1, 2012 - 3:29PM
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Optus has won a landmark court case which shatters Telstra's stranglehold over internet sports broadcasting and poses an immediate threat to the Australian Football League's recent broadcast rights deals.
Justice Steven Rares of the Federal Court in Sydney this afternoon decided Optus will be granted court protection from copyright claims by the AFL, Telstra and National Rugby League over its TV Now Service.
While Telstra and the sporting bodies are likely to appeal the decision, this will not happen before the AFL season starts on March 24 and the NRL season starts on March 1.
Optus customers can record and watch matches screened on free-to-air television and replay with delays as short as two minutes on some devices. This is in direct competition to Telstra’s exclusive deal with the AFL and NRL to broadcast matches live over the internet.
'Modern interpretation of the video recorder'
Justice Rare’s decision was based on time-shifting provisions in the Copyright Act which allow individuals to record and watch a show at a more convenient time.
Optus’s lawyers successfully argued that TV Now was a modern interpretation of the video recorder because a separate recording was made for each individual. Optus stores the recording at a data centre and sends it to individuals via the internet on request - known as cloud storage.
The decision clarifies the legal interpretation of Australia’s Copyright Act, which was written before internet broadcasting became common.
However, it also devalues the exclusive internet broadcast rights for sporting bodies in Australia.
Justice Rares found that when Optus customers ‘'clicked'’ on record they were programming a recording for their individual use. Therefore Optus was not re-broadcasting copyrighted material to the public.
‘‘I found that such a recording or film was made by the user to watch it at a time he or she considered to be more convenient than when the live broadcast occurred, even if only by minutes.
‘‘I decided that Optus’s TV Now service did not infringe copyright in the broadcasts of the AFL and NRL games in the particular ways that the rightholders alleged," he said.
"However, some other issues may still need to be resolved. These include whether Optus infringes copyright because the technology used to make a recording in the format suitable for certain Apple devices creates and stores six temporary files of 10 seconds duration every minute, and then deletes the first 10-second file as the latest one is added one minute later.’’
Appeal is possible
Telstra, AFL and NRL were ordered to pay Optus’s costs. Leave has already been granted for the parties to appeal the decision to a full bench of the Federal Court.
Justice Rares noted that the case is not fully settled until the parties have resolved the issue of near-live streaming. Optus's equipment uses four streaming methods, one of which is Apple QuickTime Streaming. This allows Optus to replay recordings at delays of as little as 60 seconds. Users cannot watch recordings until a show is finished on other devices.
The parties agreed to treat this issue separately, and Optus must still convince the court that this service does not infringe on the AFL or NRL's copyright. If this decision falls against Optus it may have not have court protection to sell TV Now on Apple devices and may be liable for copyright infringement.
Speaking outside court, Telstra spokesman Craig Middleton said the company was considering its options including an appeal to the full court of the Federal Court, and did not rule out that there may need to be legislative reform in the copyright area.
''This is an early stage. We remain committed to protecting the content rights in which Telstra has invested, in which the sporting bodies rely for income and which ultimately flows through to the fans of our sports,'' he said.
When asked whether Telstra would tear up its $153 million contract with the AFL, he said: '' I don't think that is the case at the moment, what we're focused on is bringing live AFL coverage through our online and mobile services this year.''
He also did not believe negotiations with the NRL for rugby league rights would be put on hold because of the court ruling.
'Win for innovation'
Optus spokeswoman Clare Gill said the decision was ''a win for Australians, for innovation and the law''.
''Optus is very pleased with today's outcome. TV Now is a personal video recording device that allows Optus customers to record free-to-air television and replay it at a time more convenient to them. That is how the product was developed and we're pleased the court found that today.''
When pressed whether it was unfair to the rights holders that Optus subscribers could watch live events with only a two-minute delay, she said. TV Now was ''no different from any other personal video recording device'', and that the 2006 amendments to the Copyright Act ''allowed for these type of innovations''.
http://www.theage.com.au/afl/afl-news/optus-wins-landmark-web-broadcast-rights-case-20120201-1qsqi.html
