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 for it.
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 deceptive.
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 us.
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.
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