As you will have no doubt heard on TV and talkback radio, and
read in just about every news publication in Australia, the
Australian Courts have said that Optus' TV Now recording
product is legit. It doesn't infringe the AFL's copyright
in AFL game broadcasts because of what's called the
time-shifting exception in the Copyright Act.
Optus heralded this victory as "a major win for consumers,
innovation and the law".
The AFL has made it pretty clear that they don't agree, with
a certain Mr Demetriou of the AFL telling anyone who will listen
that the TV Now service is "akin to stealing" and that
Optus is "lifting" content from the AFL and not paying
On the back of their win Optus thought they'd get one up on
the AFL, and take them to Court in a bid to stop them from making
the statements, which Optus said were misleading or deceptive.
But this time the Court backed the AFL, and said that the
statements are clearly Mr Demetriou's opinions, not statements
of fact, and when considered in the context of the way in which
Optus' TV Now service operates, are not misleading or
So for now, Optus can continue to run the TV Now service but
will not be spared from the bad press all around. Seems fair to
But the stoush is not over and it will be decided either way
when the AFL's appeal is determined later in March.
We think the Full Federal Court is likely to say that the TV Now
service does not infringe the AFL's copyright and really,
that's the right answer. The Copyright Act was changed a few
years back in response to new technologies and Optus purposely
created a product that would fit into the time-shifting exception
of the Copyright Act, if only very snugly.
We do not disclaim anything about this article. We're
quite proud of it really.
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