The federal court has ruled against Optus in its bid to record sporting events on behalf of subscribers.
The Federal Court has overturned a decision that allowed Optus to broadcast near-live vision of NRL and AFL matches through its mobile platform.
In a landmark decision earlier this year, Optus was found to have not breached copyright by allowing customers to watch sporting matches shown on free-to-air TV on a short delay through its mobile TV Now service.
But in Sydney today, three judges of the Federal Court allowed an appeal by Telstra and the sporting codes.
Optus is deciding whether to appeal to the High Court – I hope they do (and win).
Word among IP lawyers apparently is that Optus probably will win in the HC, Sinclair.
m0nty
27 Apr 12 at 1:38 pm
I hope so. IP isn’t supposed to protect business models, but promote innovation.
Sinclair Davidson
27 Apr 12 at 1:40 pm
If that is the case, M0nty, do you konw what will be the hit for Telstra in terms of revenue? I’m sure it will chop into the AFL’s revenue in coming years.
Token
27 Apr 12 at 1:56 pm
Yes, hope they appeal, and hope they win.
Fleeced
27 Apr 12 at 2:35 pm
Sinc; what’s ‘innovative’ about flogging other people’s property for your own benefit?
amcoz
27 Apr 12 at 2:42 pm
They weren’t flogging anything. People are allowed to record shows for personal use on a PVR. They are allowed to lease a PVR to do so (eg, through electronic sales and rentals – or for that matter, Foxtel – where you don’t actually own the box). Having a PVR effectively remote hosted on another server is perfectly reasonable – and yes, a very innovative solution.
These shows are free-to-air. You are allowed to record them. If I understand the Optus solution correctly, you are effectively leasing a virtual PVR.
If this is deemed illegal, then a lot of cloud hosting services are probably illegal as well.
Fleeced
27 Apr 12 at 3:01 pm
So, Fleeced, you’ll fleece my property for a profit as you give to someone else who is able to watch it for free, regardless of what cloud you’re floating on?
amcoz
27 Apr 12 at 3:10 pm
The Optus customers apparently pay more to watch matches than people taking the service through Telstra. Optus users pay data rates while Telstra customers are unmetered. This is just a way Optus is using to prevent churn by trying to eliminate product differentiation.
ar
27 Apr 12 at 3:22 pm
No, you couldn’t. As I understand it, Optus isn’t just recording once, and then sharing it witrh everybody – they are effectively selling individual personalised PVRs
The product (ie, FTA TV) is already free – customers are already allowed to record them on their PVR. Optus is selling a virtualised PVR. What property do you imagine has been stolen?
Fleeced
27 Apr 12 at 3:28 pm
The product I send FTA is only free in the signal to the receiver for their personal usebut Sum Won decided to copy it and give to others without my permission, particularly as I’ve contracted that right to U No Hoo.
amcoz
27 Apr 12 at 3:50 pm
Which is exactly what is happening here – the customer is leasing a virtualised PVR, for their viewing only.
Fleeced
27 Apr 12 at 4:18 pm
That is a contract matter between Telstra and the AFL which is dependent on the negotiating skills and power relationships of the respective parties, and the effect might not be as big as you think because there are other reasons that Telstra pays the AFL a lot of money. Telstra has been warehousing the AFL IP for more than a decade: overpaying the clubs, underinvesting in the product and generally treating it as a cost centre to be minimised. Telstra’s strategy has mainly been to block anyone else from having it. The Optus decision would change that, of course.
Then again, the reason they treat the AFL IP as valuable is that they think it drives mobile phone take-up of the various Telstra networks… but that’s not a problem for them at the moment as they are smashing the competition in the marketplace regardless, due to superior network quality and investment. So they may not feel pressure to drop the AFL contract.
m0nty
27 Apr 12 at 4:26 pm
I also hope they appeal and win. I don’t see the difference between what Optus is offering and the remote (IQ) recording (of FTA TV channels) I can request on the Foxtel website.
Sleetmute
27 Apr 12 at 5:06 pm
Sleetmute – I saw an ad the other day for a phone app/function/thing that allows you to record on Fox. Is that the what you’re talking about? I can’t see the difference either.
Sinclair Davidson
27 Apr 12 at 5:11 pm
Exactly, sleet… I think many people imagine Optus making a copy and sharing it around, whereas it’s effectively an individual virtual PVR for each customer.
The trend is moving towards virtualisation anyway – why have a big box plugged into your TV?
Fleeced
27 Apr 12 at 5:36 pm
As far as I know, IQ doesn’t get streamed to your phone. Also, Foxtel (through Fox Sports) has the rights and Optus doesn’t.
m0nty
27 Apr 12 at 6:01 pm
Property rights are everything except when it comes to the AFL it seems.
sdfc
27 Apr 12 at 6:30 pm
Humbly I ask…
Surely the advertisers like it? All that will happen is that the auction price for the rights will be lower for free to air television? Given the advertising is worth more, wouldn’t the AFL just rewrite the contract based on ad revenue during AFL games? It is hard to say the FTA stations would actually lose out to Optus…I mean, I’d rather watch Carlton thrash Essendon on a lounge, not on a train…
(I have no prior empirical or anecdotal knowledge about this).
.
27 Apr 12 at 6:36 pm
No, it gets “streamed” to your TV by a direct cable. Would it matter if it were streamed from a remote PVR instead? If so, how? And if not, why is streaming to a phone any different.
1. The Foxtel app thimgammy also allows you to record FTA in this manner – not just their own channels (which Foxtel does actually rebroadcast, unlike Optus).
2. Optus isn’t broadcasting, so broadcast rights are irrelevant. Individuals are merely using a remote PVR.
But, IANAL… I can say the way I think the law *should* work, but I can’t say whether or not the judges were wrong in this case (but if they’re right, then the law is wrong)
Foxtel should be leading the way with this sort of innovation – iQ boxes are expensive for them to install/fix – they’d be better off using a cloud-based solution where bandwidth permits it, and in years to come, I’m certain they will… unless it’s still illegal.
Fleeced
27 Apr 12 at 6:39 pm
Surely you’d rather watch them do it on a footy field?
Fleeced
27 Apr 12 at 6:42 pm
Dot
The AFL and NRL are selling a product. Any dilution of the rights must impact their revenue stream.
Whether there would be increased advertising revenue and whether it would make up for the lost revenue I don’t know. But surely it is the AFL’s right to sell their product to who they want without any freeloaders coming on board.
sdfc
27 Apr 12 at 7:01 pm
They did sell them though sdfc, to the FTA networks that broadcast them. People can watch these broadcasts for free, and are allowed to record them to PVR for personal use. Optus simply facilitated this process.
Fleeced
27 Apr 12 at 7:36 pm
Telstra also paid for the rights to broadcast AFL. The free riding Optus didn’t as far as I know.
sdfc
27 Apr 12 at 7:41 pm
But Optus isn’t broadcasting anything, so what’s the problem?
Fleeced
27 Apr 12 at 8:51 pm
Optus is broadcasting the AFL’s product to its subscribers with a 90 second delay. It has not paid for the rights.
The AFL has sold those rights to Telstra as it has a right to. Optus is free riding.
sdfc
27 Apr 12 at 10:48 pm
sdfc – IP doesn’t exist to protect revenue. A change in technology means that the AFL rights aren’t as valuable as before. Those same rights didn’t even exist (about) 10 years ago.
Sinclair Davidson
27 Apr 12 at 10:57 pm
The product is owned by the AFL. It is being pilfered by Optus, reducing the value of the AFL’s property.
sdfc
27 Apr 12 at 11:59 pm
But they’re not broadcasting – that’s the point. Each user’s stream is separate.
AFL own the product. They’ve sold screening rights to the networks. FTA network screens it, and end-user records it – as is their right.
Do you consider it theft for the end user to record on their PVR? How is this different?
Fleeced
28 Apr 12 at 12:17 am
I have to be an Optus subscriber to get the coverage via that method. They are in effect broadcasting to their subscribers.
How is it different? Optus is profiting from it at the expense of the owner of the product.
sdfc
28 Apr 12 at 12:24 am
They are not broadcasting. Each stream is separate and individual – hence, not broadcasting. The owner of the property in question has already sold it – to the networks. Users are free to record – either on their own devices, or ones they lease from others – provided it is for their personal use.
Now, it seems to be this latter point where the fed court has disagreed, and declared these recordings to be made by Optus not the individual. I believe this is wrong, but if upheld may simply require a technical workaround on Optus’ part… Otherwise, their may be many other cloud services, both upcoming and already existing, that will be stifled.
Honestly, as bandwidth increases, most tv you watch will be delivered this way – but you want it outlawed?
Fleeced
28 Apr 12 at 12:44 am
I don’t want anything outlawed. What I want is irrelevant.
Optus is piggybacking on AFL property, profiting from it, and in the process devaluing the AFL’s product.
Regardless of the tchnology it is no different to me printing up text books, written by someone like Sinclair, and selling them.
sdfc
28 Apr 12 at 12:56 am
sdfc, you’ve nailed it, concisely.
Sum Won owns the ‘virtual pvr’ to which the free signal is received, and then they are aiding the copying of it and charging a fee for that copy without seeking the free-signal owner’s permission.
amcoz
28 Apr 12 at 1:47 am
So you think this is passing off, sdfc?
.
28 Apr 12 at 3:04 am
Hoping Optus will win is just bone-headed. It’s plain common sense that professional sporting events will not be produced in the same quantity or quality if the copyright in the broadcasts is not protected.
Pedro
28 Apr 12 at 9:06 am
I thought that they will be “protected” by largely shifting what is left to subscription broadcasting, the only problem being that there isn’t much competition here for an “auction”.
.
28 Apr 12 at 9:45 am
“I don’t want anything outlawed”
But you accept a viewer can record themselves, yes? What does it matter whether they use their own physical PVR or a remote server app?
Or is it just sporting events that trump rights of people to record FTA stuff for personal viewing? This is essentially the service that Optus was offering[1] (frankly, I don’t care about AFL – I don’t see why sport needs special protection).
The only reason it’s an issue for sporting events in the first place is because government insists they be shown over FTA…
[1] The judges disagree with my interpretation:
Looking at above statement, I think the judges are luddites. They concede that it’s personal use, but discount it on fact that “Optus effects it”. How do they think PVRs work? (In fairness, I don’t know how they came to that conclusion… it may be that Optus simply needs to tweak things to get around it, by making leasing of server app to individual more explicit).
Fleeced
28 Apr 12 at 10:14 am
Unless I am missing something here, the question isn’t whether Optus own the rights to the AFL, but whether it is legal for them to record live FTA television broadcasts on behalf of their customers and then later deliver that recording to the customer.
Just because sports is involved, people are getting all worked up on the matter. The court should have no regard for what the content being delivered is. The question is quite simple:
If I am legally allowed to make a recording of a FTA transmission for later personal viewing, am I entitled to request someone else to make that recording on my behalf, and then deliver that content to me for my personal viewing?
If the answer to this question is yes, then the only objection to the Optus situation can be that this isn’t what Optus is in fact doing.
Rebel with cause
28 Apr 12 at 10:26 am