AFL v Optus Now

Launched in July 2011, Optus TV Now is a product which streams live tv to your phone, including sports broadcasts. In 2011, The AFL and NRL claimed that this infringed copyright and their broadcast rights.

In February 2012, the court ruled that the service is essentially the same as a video recording. However, the method used to stream it may violate copyright. The case will likely be appealed to the High Court.

On February 3rd, Stephen Conroy foreshadowed changes to legislation stating that

“If we want to sustain the competitions – the NRL, the AFL, and all of the other sporting competitions – not just here but around the world – if you pay a large amount of money for those rights, you have got to be able to protect it”

On February 7th, the heads of major codes including the AFL, NRL and Cricket Australia were reported in meetings with the Prime Minister lobbying for legislative changes regarding broadcasting copyright.

On February 10th, the AFL announced it would lodge an appeal against the previous Federal Court ruling and seek a permanent injunction. it has been joined in this action by telstra.

On February 13th, Telstra released its AFL plans for mobiles for 2012, with a $50 per season ($5 per match, $10 per month) fee to see ALL AFL games live or virtually live via an app. Optus responds by saying that content should be available at the same price to all carriers.

On February 22nd, Tennis Australia announced it supported legislative change and backed the AFL/NRL position. The same day, Optus took legal action to prevent AFL CEO Andrew Demetriou from categorising the service as stealing and encouraging AFL supporters to switch away from Optus.

On February 28th, Optus’ bid to prevent the AFL CEO from commenting further was rejected by the court, saying that Demetrious comments were clearly an expression of honest opinion and not purporting to be a statement of fact.

On February 28th, The AFL website published an article claiming that Optus was unlikely to ever have a working relationship with the AFL, and it may not be allowed to bid for AFL content in the future on any platform.

“I’d find it really hard to engage with Optus in any serious dialogue  and have any relationship based on their practices, because I just find  them unethical,” he said.

The TV Now case is now fixed for hearing by the Full bench of the Federal Court on March 14 and 15, 2012

On April 27th, the full bench of the Federal Court has upheld the appeal by the AFL and company, and declared the Optus service breaches current copyright law by actively facilitating the recording and storage of copyright – in this case, sport – material.

In its ruling the court said

“The natural meaning of the section is that the person who makes the copy is the person whose purpose is to use it as prescribed by s 111(1). Optus may well be said to have copied programs so that others can use the recorded program for the purpose envisaged by s 111. Optus, though, makes no use itself of the copies, as it frankly concedes. It merely stores them for 30 days. And its purpose in providing its service — and, hence, in making copies of programs for subscribers — is to derive such market advantage in the digital TV industry as its commercial exploitation can provide. Optus cannot invoke the s 111 exception.”

As expected, Optus will appeal to the High Court, its last chance to win approval of its current offering short of legislative changes to the existing copyright law. With the Federal Government indicating it supports Sport in this manner, it really does come down to the success of an Optus appeal.

In the meantime, Optus has removed the TV Now service from its offerings.

Reported in The Register on May 10th – Optus confirmed it will try to take the case to the High Court. Its CEO trying to add further impetus to their case by saying that since Optus is a major TV sport advertiser, it deserves to keep its TV Now service operating because Customers shouldnt have to pay twice for the same product.

On September 7th, 2012, the Sydney Morning Herald reported that the High Court declined to hear the Optus appeal, effectively leaving only legislative change as an option. There is now no legal recourse for Optus, and the article claims that Optus will permanently close its TV Now service.

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