Optus fights back in TV Now appeal

Optus fights back in TV Now appeal

Summary: 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.

TOPICS: Telcos, Optus

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.

Topics: Telcos, Optus


Armed with a degree in Computer Science and a Masters in Journalism, Josh keeps a close eye on the telecommunications industry, the National Broadband Network, and all the goings on in government IT.

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  • One point I haven't seen discussed, is whether every customer recording is an individual copy, within their own personal data allocation, that can be accessed by that customer alone. I would imagine that tens of thousands of people recording an AFL game, which is then stored in 4 different formats, would require hundreds of terabytes of data in Optus' Data Centre.
    If Optus is merely automatically recording every television show, in four different formats, and then streaming that copy to every customer that wants to watch it, then I would imagine this would be an entirely different issue, and would possibly fall outside the time-shifting provision.
    This is not to say the first scenario is necessarily covered under the provision either.
  • I believe it's separate data for each user, and each user can only access their own data, according to Optus during the case. I suspect if it was a central file and only one recording, it would be Optus that was making the recording and then communicating it to the public. Optus would say that's not what they've done. I think it would record an individual 4 files for each user and store it in their data centre.

    Given the data only has a 28-day shelf life and customers only get half an hour for free (or more if they pay), I don't think it'd be too strenuous for Optus to host it all.
    Josh Taylor
  • It amazes me that the law is so ridiculous. You can have half a dozen different procedures all resulting in the same outcome, and one won't break any copyright laws, yet another will. Example, I can record live TV on my PC at home, stream it back to my phone with a tiny delay, and that's fine, however inefficient, if someone offered a central service, and on this central service they recorded EVERYTHING, then allowed you to play it back when you chose, that wouldn't be fine, end result is the same, I watch a show with a brief time delay on a device of my choosing.
  • The reality is that all live tv is several seconds behind.