Simpsons Solicitors

Optus wins TV Now litigation – Round 1

February 1st 2012

Optus has won the first round in the copyright litigation over its TV Now service, with Federal Court Justice Steven Rares finding that the company’s service did not infringe the copyright of the NRL, AFL and Telstra (rightsholders of a several sporting broadcasts recorded using Optus’ service).

Optus’ TV Now service enables its customers to record free-to-air TV programs (the recordings are stored on Optus’ cloud storage platform) and stream the recorded programs to their devices for later viewing.

Telstra and the sports organisations argued that Optus made unauthorised recordings of their sports broadcasts and then made unauthorised communications of these recordings to their customers.

Optus argued that it was their users (not Optus) that made the recordings and that playback of these did not infringe copyright because they fell within the section 111 exception for recording broadcasts for private or domestic use.

Justice Rares considered seven separate issues. His findings included that the individual users were the ones that committed the act that brought about the recording and that such a recording did fall within the section 111 exception.

Leave has already been granted for Telstra and the sports organisations to appeal to the Full Federal Court.

The full text of the decision can be found at:
http://www.austlii.edu.au/au/cases/cth/FCA/2012/34.html

To read more about this story go to: http://www.copyright.org.au/news-and-policy/details/id/2031/

For media comment quoting Ian McDonald (Special Counsel, Copyright) at Simpsons Solicitors, see:

http://www.zdnet.com.au/conroy-flags-law-changes-from-optus-win-339330970.htm

Ian also discussed the case – and, in particular, the exception in the Copyright Act on which the decision was based – in a 10 minute radio interview with 6PR in Western Australia. A podcast is available here:

http://www.6pr.com.au/blogs/6pr-perth-blog/optus-win-threatens-afl-deal/20120202-1quis.html

For inquiries relating to publishing and copyright law please contact Adam Simpson.