Today, the National Rugby League (NRL) began its appeal against a court decision made last year, which found that Optus did not infringe on the copyright of sporting codes by providing a service for users to record TV programs to watch later on mobile phones.
At the time, Justice Steven Rares ruled that the act of recording initiates when the user hits the record button on the app, which he said is no different to the act of recording using a VCR or a digital video recorder.
The NRL has argued before Justices Arthur Emmett, Annabelle Bennett and Paul Flinn that Rares erred when he ruled that it was the user, and not Optus, who initiate TV recordings in its TV Now app, pointing to the four copies made for each recording.
"If Optus, as it must, weekly updates a programming guide which facilitates the copying, why is Optus not initiating the copying?" NRL counsel Noel Hutley asked.
Key to Hutley's argument is the notion that the user making the recording is likely "wholly ignorant" of the fact that when they press record, four different files are made, to ensure that the user can view the recording on iPhones, Android devices, computers and other 3G mobile devices.
"We submit that it is unlikely that the maker would be wholly unaware of the act of creation," Hutley said. "Owing to the commercial needs for Optus to market its TV Now service to its customers or potential customers, it had to create individual copies in respect to each commonly used platform. That was its decision."
Hutley argued that Optus provided no evidence in the original trial that customers want to view the recordings in all four file formats, and had just merely speculated — and, therefore, Optus has a commercial role in making the recordings on behalf of the customer.
This afternoon, the court will hear from counsel representing the AFL and Telstra. At stake for the AFL is a $153 million deal with the telco giant for mobile broadcasting rights for its football matches.
The case has caught the attention of other rights holders, with Screenrights represented and the Australian Federation Against Copyright Theft's (AFACT) Neil Gane sitting in on the appeal hearing.
The case continues this afternoon.