On day two of the appeal hearing for the Optus TV Now case, Optus has defended its decision to store four file formats of each TV recording, pointing to evidence that doing so is what users want.
The National Rugby League (NRL) yesterday gave evidence to support its appeal of last year's Federal Court judgment that Optus' TV Now app does not infringe on its copyright. Justice Steven Rares had ruled that although Optus held all of the recording technology in its datacentre, the system is no different to a personal digital video recorder. He said that it is ultimately the user who makes the recording, which means that the recording is covered under the time-shifting provision of the Copyright Act, which allows users to record broadcasts to watch at a time more convenient.
NRL counsel Noel Hutley yesterday argued that Rares erred in his original judgment, because he did not take into account the fact that Optus creates four different file types for each recording — one for PC, one for iPhone, one for Android and one for 3G mobiles — even though the user never requested that. Hutley said that Optus had produced no evidence in the original case to prove that customers would want it on multiple devices, and that this alone proves that Optus at least has a hand in "making" the recording, and, as such, does not fall under exemptions in the Copyright Act.
Today, Optus counsel Richard Cobden produced evidence showing at least three instances where Optus customers had initiated the recording on one device, only to watch the recording on another.
"The user will switch between devices ... without being concerned about what the format will be, only that they will have access to watching it," he said.
In regards to whether Optus is responsible for the communication of the recording to the user, Cobden argued that there will always be some form of communication between the recording device and the viewing device, pointing to the fact that a DVR communicates recordings to a TV when a person is watching a recording.
"There's always going to be some kind of device shift, because the television is not a recorder," he said.
Cobden argued that Optus merely provides the instructions to a user for how to record TV broadcasts that they want, and ultimately the user makes the recording based on that instruction. Justice Paul Finn said that he didn't understand how Optus could play no role in making the recording.
"[You say,] 'I have instituted a regime that will ensure what you want is provided,' [but] why does the giving of the instruction trump everything else?"
Yesterday, Screenrights was allowed to intervene on the case, and it argued briefly before the court that under the Copyright Act, it should be able to seek to claim royalties from Optus for shows streamed on the TV Now iPhone app two minutes after broadcast. Screenrights argued that it is substantially no different to royalties it had collected from Vodafone for its mobile TV apps, even if the stream is delayed by two minutes.
Today, Cobden argued for Optus that under the Act, it does not count as a "simultaneous transmission" because of the two-minute delay, and thus royalties do not apply.
The court has reserved its judgment.