Feeds

TV Now was too good, and that was its downfall

Optus loss not the end of the road

Remote control for virtualized desktops

Absent an appeal to the High Court, Optus’ TV Now service infringes copyright. It is not, however, a threat to the whole of the Internet, cloud services – nor even, necessarily, to the use of cloud to record TV.

Although there will, indubitably, be people crying doom – and in spite of the victors’ crowing, which includes AFL boss Andrew Demetriou re-iterating his “stolen content” line to anyone who’ll listen – the Optus TV Now appeal decision is quite constrained.

It covers a specific service with specific technical and customer relationship characteristics – and the judgment even notes that a provider might be able to contrive a cloud PVR service that doesn’t fall foul of the Copyright Act.

“We should emphasise that our concerns here have been limited to the particular service provider-subscriber relationship of Optus and its subscribers to the TV Now Service and to the nature and operation of the particular technology used to provide the service in question. We accept that different relationships and differing technologies may well yield different conclusions to the “who makes the copy” question,” the judgment says.

In other words, the full bench of the Federal Court has decided that TV Now – the system, complete with all the technology needed to deliver the service – was designed with the sole purpose of recording and playing back TV shows, in a way in which the ordinary citizen may not have been able to do. Optus put a mighty amount of technology and expertise into crafting the system – and that was its downfall.

“Put shortly Optus is not merely making available its system to another who uses it to copy a broadcast … rather it captures, copies, stores and makes available for reward, a programme for later viewing by another,” the judges have decided.

So what matters, both for the “cloud PVR” sector and the industry at large, is to understand how the system design and the Optus-customer relationship combined to condemn TV Now. Which characteristics of the service design do the judges seem to single out in their decision?

A key aspect, the court found, was Optus’ “heavy involvement” in the recording. TV Now required so much activity on Optus’ part that it became a “maker” of a copy along with the individual subscriber. “Without the concerted actions of both [Optus and the subscriber – Ed] there would be no copy made of a football match for the subscriber. Without the subscriber’s involvement, nothing would be created; without Optus’ involvement nothing would be copied.”

Had Optus been permitted to keep its previous shelter, Section 111 of the Copyright Act (which permits copies to be made for personal and private use to facilitate time-shifting), it may have survived this reasoning. However, the court decided that Section 111 isn’t involved because Optus isn’t a “private” individual – from the judgment: “Moreover, the natural meaning of the section is that the person who makes the copy is the person whose purpose is to use it as prescribed by Section 111(1). Optus may well be said to have copied programmes so that others can use the recorded programme for the purpose envisaged by Section 111.” (Emphasis added).

Can systems not infringe?

Hence the judges’ observation that a non-infringing system might be feasible – if the system is designed such as to avoid the liability of the provider becoming a “maker” of the copy.

For example, imagine a rack full of PVRs, whose connection to the Internet merely facilitated a customer streaming the output of their tuner to the remote device. The provider, renting a device to a consumer, providing power (and reboot), and connecting the I/O to a router – that provider might survive this judgment.

Alternatively: if I provide a cloud computing service, and a customer configured TV recording software to could send stuff from their own home for their exclusive and personal storage and retrieval – then I can’t see how it would be captured by National Rugby League Investments vs Singtel Optus.

Nor is there any natural reason to extend this judgment to (say) Dropbox or other simple cloud storage services. They do not, as Optus did, provide a nest of antennae to receive broadcast signals, design an electronic program guide, or put together transcoders to create a copy in each of the supported formats (PC, iOS, Android and mobile phone).

The decision, in other words, is a threat to the nascent “cloud PVR” business in Australia – I would imagine that providers like MyTVR.com.au and Beem.tv are worried – but its impact beyond that sector seems limited. ®

Intelligent flash storage arrays

More from The Register

next story
Bladerunner sequel might actually be good. Harrison Ford is in it
Go ahead, you're all clear, kid... Sorry, wrong film
Musicians sue UK.gov over 'zero pay' copyright fix
Everyone else in Europe compensates us - why can't you?
I'll be back (and forward): Hollywood's time travel tribulations
Quick, call the Time Cops to sort out this paradox!
Euro Parliament VOTES to BREAK UP GOOGLE. Er, OK then
It CANNA do it, captain.They DON'T have the POWER!
Megaupload overlord Kim Dotcom: The US HAS RADICALISED ME!
Now my lawyers have bailed 'cos I'm 'OFFICIALLY' BROKE
Forget Hillary, HP's ex CARLY FIORINA 'wants to be next US Prez'
Former CEO has political ambitions again, according to Washington DC sources
prev story

Whitepapers

Designing and building an open ITOA architecture
Learn about a new IT data taxonomy defined by the four data sources of IT visibility: wire, machine, agent, and synthetic data sets.
Forging a new future with identity relationship management
Learn about ForgeRock's next generation IRM platform and how it is designed to empower CEOS's and enterprises to engage with consumers.
5 critical considerations for enterprise cloud backup
Key considerations when evaluating cloud backup solutions to ensure adequate protection security and availability of enterprise data.
Reg Reader Research: SaaS based Email and Office Productivity Tools
Read this Reg reader report which provides advice and guidance for SMBs towards the use of SaaS based email and Office productivity tools.
Managing SSL certificates with ease
The lack of operational efficiencies and compliance pitfalls associated with poor SSL certificate management, and how the right SSL certificate management tool can help.