In April 2011 Telstra bought the exclusive right to broadcast
AFL games over the internet and the mobile telephone network for
$153M. Yesterday, a decision of Justice Rares in the Federal Court
may mean that Telstra paid far too much.
The decision concerned the Optus TV Now service which allowed
Optus customers who subscribe to the service to record the (amongst
any free to air TV) AFL games and watch them with as little as a 2
minute delay. Optus has not paid AFL or any rights holders to offer
Justice Rares decision is essentially that the TV Now service
provides the same service as that of a personal video recorder (or
PVR such as Tivo or Foxtel IQ). Currently the Copyright Act allows
individuals to record free to air television on their own video
recorder for personal use to watch at a more convenient time.
Significantly Justice Rares found that the customer, not Optus,
had "made" the recording, even though the recording was
stored in Optus' servers. The Court rejected Telstra's
argument that Optus had made the recording for their own commercial
His Honour commented that even a 2 minute time shift could be
more convenient for the customer and that no copyright violation
occurred when the customer played the recording.
This decision is interesting not just because it has the
dramatic effect of devaluing the rights purchased by Telstra but
also that it seems to be prepared to look objectively at the
virtualisation of the PVR into an online environment and treat it
as the same conduct by the end user and may see a rush of other
providers offering similar services.
Leave to appeal to the full Court of the Federal Court has
already been granted and an appeal seems likely.
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The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
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