Telstra has fired back at claims from Optus and legal experts that the court ruling against Optus over its TV Now service will affect cloud services, stating that the court's judgment provides "clarity" for cloud operators.
On Friday morning, the High Court of AustraliaOptus' appeal of the that the company's TV broadcast-recording product TV Now breaches copyright.
Optus fought against the National Rugby League (NRL), the Australian Football League (AFL), and Telstra in the case, as the organisations were concerned that the app would put their multimillion-dollar mobile-broadcasting deals in jeopardy. Optus argued that its app, which allowed users to record free-to-air TV broadcasts and save them to Optus' cloud to view later, was not in breach of the Copyright Act, because it was similar to a digital video recorder. Recording at home to watch later is allowed under an exemption in the Copyright Act.
But the Full Federal Court disagreed, and the High Court said that Optus had little chance of overturning this ruling, because it was a commercial product and Optus played a role in making the recording rather than the recording being the sole act of the customer.
In a blog post yesterday, Telstra lawyer Jane Perrier said that the ruling is positive.
"The decision provides welcome clarity for cloud operators, while at the same time recognises the delicate balance of interests which copyright law seeks to protect," Perrier said.
Optus and legal experts claimed that the ruling will impact what cloud service providers could offer to customers. Dr Rebecca Giblin, law professor at Monash University,that many cloud services would be targeted by the ruling.
"Many remote backup services can be set to automatically scan for and copy all files of a particular type, like movies or music," she said. "Under the Full Court's reasoning, those providers could be 'making' copies and, therefore, committing copyright infringement, just through that automatic process."
But Perrier said that because the ruling focused on the relationship between Optus and the customer, a different sort of technology may ultimately result in a different court ruling.
"It ... doesn't follow from the decision that cloud operators will automatically be found to have copied content that is uploaded to their services; liability will depend on what the cloud operator does, and how the operator does it," she said.
Perrier said that in making copies of the broadcasts of football matches on TV for a commercial gain, Optus was in breach of the Copyright Act, and should have obtained a licence or permission first.
"[The court] made it clear that private copying, and the kind of commercial copying that the Optus TV Now product was engaged in, are distinguishable," she said.
Perrier said that the court's decision will now allow Telstra the "freedom" to grow its cloud business and invest in services such as the AFL live app.