The Australian High Court has rejected a special leave application from Optus, as it seeks to overturn a ruling of the full bench of the Federal Court that the company's TV Now broadcast recording product infringes on copyright.
In July 2011, Optus released a free-to-air TV broadcast recording product, known as TV Now, that would allow Optus customers to save recorded TV broadcasts from 15 channels to Optus' cloud, which they could then watch on PCs, iPhones and Android products.
The iPhone app also allowed customers to stream the recorded broadcast with as little as two minutes delay from the original broadcast.
This morning Justices William Gummow, Kenneth Hayne and Virgina Bell denied Optus' application to have the case heard before the High Court, saying that there was little chance for the case to succeed.
TV Now had called into question the value of the AU$153 million deal Telstra had just secured with the Australian Football League (AFL) to stream matches over Telstra phones, and the NRL was looking to sign a similar agreement at the time.
AFL boss Andrew Demetriou has called Optus "disgusting" for releasing the product, and has urged Optus customers to switch to rival Telstra.
Optus preemptively took the NRL to court, seeking to prove that the app was valid under the Copyright Act exemption, which allows individuals to record broadcasts to watch later, at a time more convenient. The AFL and Telstra joined onto the case against Optus.
Justice Steven Rares originally ruled in Optus' favour, but this was overturned on appeal, with the full bench of the Federal Court stating that, because Optus' systems were recording programs for the customer for a commercial gain and Optus had a direct hand in the recording, the product did not fall under the exemption.
Optus appealed again, with legal experts speculating at the time that the ruling could have a major impact on the use of cloud services across the board. At least two similar services have been shut down since the appeal ruling, and Optus suspended the TV Now service ahead of the special leave hearing.
More to come