As we await the result of the iiTrial, a new intellectual property battle looms over a copyright clause that allows users to record television to watch it later.
Optus TV Now, first announced in July, 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. All subscribers get a basic 45 minutes of free storage per month, while customers can buy five hours for $6.99, or 20 hours for $9.99 per month.
It is understood that the recording is delayed by two minutes from the live broadcast.
The Australian Football League (AFL) and the National Rugby League (NRL) were none too pleased about the program, as it brought 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, and it also limited the NRL's ability to sign a similar deal. Optus made a pre-emptive strike in September, starting a case that tries to prove that the two sporting bodies can't sue for breach of copyright because of a clause in the Copyright Act 1968. The football organisations have made counterclaims, and Telstra has joined in on the case.
The part of the Act that Optus is hoping to rely on sets out time-shifting provisions, which allow individuals to record a TV or radio program for personal use to watch "at a more convenient time".
According to law firm DLA Piper, the case will likely set the standard for cloud storage of video in the future, and also address the issues surrounding personal video recording (PVR) in the digital age.
"Success for Optus would throw open the doors to an already burgeoning market, allowing enterprising Australian companies to capitalise on the 'time shift' and related 'format shift' exceptions in the Copyright Act to provide online locker services for media content."
The effect would be that the cost for broadcast rights of any sporting event could be called into question, including deals surrounding the 2012 Olympic Games.
The trial is scheduled to be heard in the Federal Court in Sydney over four days, starting on 19 December. Many of the counsel representing iiNet and the Australian Federation Against Copyright Theft (AFACT) in their copyright court battles have also been brought on-board for this case.
In a directions hearing today, a counterclaim against Optus for damages for broadcasts recorded between the launch of TV Now and the end of the AFL and NRL seasons in 2011 were dropped. Justice Steven Rares ordered that until further notice, access to an expert report from a specialist hired by Optus to describe how the system works remain restricted to external solicitors and counsel for the AFL, the NRL or Telstra.
Rares noted that there would be strong interest in the case, and asked Optus counsel to produce a redacted version of the document.
"[The media] will want to have access to whatever they're entitled to. They'll want to be able to have a version of [the expert report] and I would hope you would be able to make available the public version."