news The nation’s second-largest telco Optus today said it would appeal its Federal Court loss over its TV Now cloud-based personal video recording software to the High Court.

“Today we can confirm we will appeal the TV Now decision in the High Court,” the telco’s chief executive Paul O’Sullivan said in a statement this afternoon. “We believe the TV Now case is extremely important in deciding the future for innovation, consumer choice and competition.”

“Increasingly, developments like cloud computing will see Australians using applications held online and wanting to store online rather than just using fixed hardware based in the home. Australian consumers want legitimate access to content on any device regardless of the genre and we want to continue making the latest technologies available to Australians to meet this demand.

“This is a very important public policy issue that needs to be determined by the highest court in the land, to give clarity to both consumers and the industry. As innovations like TV Now are readily available in other parts of the world, Australia must remain globally competitive and embrace the rapid convergence of technologies as we head towards an NBN world.”

The Optus TV Now service allows customers to have free to air television programs recorded when broadcast, using Optus’ centralised systems, and then played back at the time of a customers’ choosing on their Optus mobile device or PC. This technique is known as “time-shifting”, and attracted the legal ire of the NRL and other groups such as the Australian Football League, which had granted Optus rival Telstra an exclusive licence to make their broadcasts available online.

Late in 2011, Justice Steven Rares of the Federal Court had found in Optus’ favour in the case which the telco had filed against the NRL (later joined by Telstra and the AFL), stating that Optus’ technology was similar to recording a TV show using a video recorder in a loungeroom. However, in a new judgement after an appeal, the full Federal Court found several weeks ago that Optus’ technology could not come under the auspices of the Copyright Act.

In its judgement, available online here, the Federal Court wrote that there were two issues at the heart of the case — who recorded the TV shows, and if Optus’ act in recording the device constituted an infringement of the copyright of the NRL, AFL or Telstra, could Optus invoke the “private and domestic use” defence under Section 111 of the Copyright Act, which allows limited recording of content for personal use.

The initial judgement had found that customers made the recording. “Ours is a different conclusion,” wrote the full Federal Court. “The maker was Optus or, in the alternative, it was Optus and the subscriber. It is unnecessary for present purposes to express a definitive view as between the two. Optus could be said to be the maker in that the service it offered to, and did, supply a subscriber was to make and to make available to that person a recording of the football match he or she selected.”

“Alternatively Optus and the subscriber could be said to be the maker for Copyright Act purposes as they acted in concert for the purpose of making a recording of the particular broadcast which the subscriber required to be made and of which he or she initiated the automated process by which copies were produced. In other words, they were jointly and severally responsible for the act of copying. That is our preferred view.”

Following on from this determination, the court found that Optus could not use the Section 111 defence under the Copyright Act.

The case has been viewed as a test of such services in Australia. However, the Federal Court warned against taking its implications too broadly. “We should emphasise that our concerns here have been limited to the particular service provider-subscriber relationship of Optus and its subscribers to the TV Now Service and to the nature and operation of the particular technology used to provide the service in question,” it wrote. “We accept that different relationships and differing technologies may well yield different conclusions to the “who makes the copy” question.”

Optus has reportedly suspended the TV Now app.

opinion/analysis

I think most people viewed this appeal as being fairly inevitable.

Image credit: Optus