Even if Optus wins its case against the National Rugby League (NRL), the Australian Football League (AFL) and Telstra, the concept behind its TV Now product might be short lived, as the legislation enabling it will likely be re-examined, according to Damien Tampling, national leader of Deloitte's Technology, Media and Telecommunications advisory arm.
Tampling is looking forward to the decision on the case, as it will have far-reaching ramifications for the broadcast industry.
"I think it's probably going to be one of the cases and legislation of this year," he said.
The case began last year, after Optus TV Now launched in July. The service allows customers to use Optus' storage cloud to schedule, record and playback free-to-air digital TV on 15 channels from a 3G mobile or PC.
The AFL and the NRL are none too pleased about the program, as it allows iPhone owners to watch a game with only a two-minute delay, and brings into question a five-year, $153 million deal that the AFL had in place with Telstra to provide streaming video of live matches to mobiles. It also limits the NRL's ability to sign a similar deal.
Optus decided to go on the offensive, bringing a case against the two sporting bodies, saying that they can't sue for breach of copyright because of a clause in the Copyright Act 1968, which allows individuals to record a TV or radio program for personal use to watch "at a more convenient time".
The football organisations made counterclaims, and Telstra joined the case. The judge has reserved his decision, and has admitted that regardless of the outcome, it is likely that one of the parties will appeal the ruling, and so has granted leave to appeal the judgment when it is handed down.
If Optus wins, the whole idea of how broadcast rights are bought will have to be rethought.
Indeed, law firm DLA Piper has previously said that it would open the door to more enterprising companies, which would use the time-shift clause to provide online locker services for media contact, jeopardising the cost of broadcast rights for any sporting event.
Yet, a win for Optus might not see this vision come to pass. Tampling thinks that there will be calls to re-examine the legislation with the loophole, to decide whether products like TV Now should be possible.
"It's one thing to say it's legal, but is it right?" he asked.
Deloitte has just released its 2012 technology, media and telecommunications predictions, many of which have concerned media and television. Deloitte sees this year as the year when households will buy multiple tablets, which will make them rethink how they consume traditional media, including cancelling newspaper subscriptions.
On the enterprise side, Deloitte sees 2012 as the big year for Big Data. From a modest $100 million in 2009, Deloitte expects big data to push revenues of $1 billion to $1.5 billion this year globally, mostly from pilot projects. The real winners in this push will be the niche providers, Tampling said, as they will be able to drill into the data with specialist skills.
Companies in group buying will also succeed by finding a niche this year, Tampling believes. Meanwhile, mid-sized companies will be looking with interest at how the likely Facebook initial private offering goes, to get an idea of how the market is tracking.