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Rugby League kicks back, wins Optus TV Now appeal

Next stop, the High Court

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The Australian Football League and Australian Rugby League have won their appeal against a Federal Court decision ruling that the Optus TV Now service did not breach copyright.

In a ruling that re-interprets the way the Copyright Act relates to personal recording of TV content, the full bench of the court has decided that Optus, rather than the individuals using the service, was responsible for copyright breaches.

Optus is considering whether to launch a High Court case to defend itself.

Previous decisions had found in favour of Optus, on the basis that TV Now put both recording and playback under the full control of end users. Optus merely provided the personal video recording equipment as a cloud service, and had argued that it had a passive role.

The sports codes had argued that TV Now put at risk lucrative rights arrangements with incumbent Telstra, which signed a contract worth more than $AU150 million with the AFL for the right to stream matches to mobile phones.

Telstra and Australia’s sports chiefs have both been lobbying the government to revise the Copyright Act in their favour. While this decision may relieve some of the pressure on the government, it’s likely that sports will still be arguing for greater certainty, in case Optus (or some other service) is able to find a way to sanitize the service in the light of the decision.

Summarising its judgment, the full bench decided that Optus was, in fact, the maker of the recording – either in its own right, or jointly with the subscriber.

“In other words, they [Optus and the subscriber – Ed] were jointly and severally responsible for the act of copying,” the judge said.

The judges said this brought into question the issue of whether the act of copying could be excused by the defense, provided in Section 111 of the Copyright Act, that the copies were made for “private and domestic” use.

This had not needed consideration in prior hearings of the case, since the copies had been considered to be made by the subscriber alone.

Considering this question, the full bench of the Federal Court came down on the side of the sports codes, stating that “Optus cannot either as maker alone or as a maker with a subscriber bring itself within the scope of the Section 111 exception in its proper construction”.

Optus has advised The Register that it is not providing interviews, but will make a statement later today (Friday 27 April). Telstra and the sports codes are already crowing have already welcomed the judgment. ®

The Register will look at the judgment in greater detail later today. ®

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