Sporting codes yesterday argued that Optus' TV-recording app TV Now cannot be for personal use because it is Optus, not the customer, that makes the recording of the broadcasts.
On day two of the fight between Optus, the NRL, the AFL and Telstra over its TV Now cloud-based free-to-air TV-recording app, Optus counsel Richard Cobden sought to establish that although Optus holds the content and the recording facilities, the act of recording individual broadcasts is the choice of the consumer.
"At the stage of the copy, it was the consumer making the decision of what recording would go on Optus' servers," he told Justice Steven Rares.
Cobden said that Optus has no control over what content from the free-to-air channels the customer chooses to record, and he argued that as it is the customer's choice to record, in order to watch at a time more convenient to them, the app does not breach copyright under the "time-shift" provisions in the Copyright Act.
David Catterns, acting on behalf of the AFL, said that "making the recording" is through the process of recording rather than the act of the customer requesting Optus to record the broadcast for them.
"The process is, you identify the copy, you locate it ...Here are four copies ... located in the NAS, when they were made," he said. "They were not made when the consumer pressed the red button; they were made when the process of interrogation or polling took place."
"We submit that Optus makes it on request by the consumer. The fact that the consumer has requested it is irrelevant to who makes it."
Further to this, Catterns argued that Optus is seeking to stretch the time-shifting provision in the Copyright Act that lets people record broadcasts to watch at a "more convenient time" to allow its customers to watch recordings at any time from any device, even just two minutes behind live broadcast.
Rares questioned why people shouldn't be allowed to make content for different devices under the provisions, given the advance in technology in the years since the provision was introduced.
"If I've got three different devices, I've got an iPad, and Android phone and I've got a PC. I want to download and take [the recording] on a plane. Why is it not contemplated that it would be for private or domestic use?"
Noel Hutley, acting on behalf of the NRL argued that by producing four different formats for each recording, Optus was proving that the customer was not making the recording themselves for private use.
"It's somewhat strange that someone who doesn't have an Apple [iPhone] would make a copy that is Apple iPhone compliant. It's just words. It's clear that Optus made it," he said. "One seriously couldn't advance an argument that it was for private or domestic use."
Hutley said that the case is not about Optus seeking to offer recordings for TV to watch at a "time more convenient" as is allowed under the Copyright Act, but, instead, because the content can be streamed on the iPhone, it is more about where the customer was at the time.
"This allows you, in effect, to enjoy convenience of space. Not convenience of time," he said.
Thus, the recording was not for the personal use of the customer, but for the commercial benefit for Optus, he argued.
"Their true purpose is to run what they'd like to call a 'disruptive business'," he said.
Rares reserved his judgment on the case. He admitted that regardless of the outcome, it is likely one of the parties would appeal the ruling, and granted leave to appeal the judgment when it is handed down.