Optus wins first round of Optus TV Now!
At first instance, Rares J has ruled that Optus’ TV Now service does not infringe the copyright in broadcasts of the AFL or the NRL (its the first round only as, by agreement, leave to appeal to the Full Court was given to whichever party lost before the decision was handed down).
The pressures of time mean that I can only provide a very brief synopsis at this stage: however, his Honour has also published a very helpful Summary in what would probably be considered more user friendly language (and length).
To recap: Optus offered its 3G mobile (cellular) customers – well the personal and small and medium business ones – with a service in which they could choose to record a broadcast of a free to air (FTA) television broadcast. Once a customer chose a recording, Optus’ equipment recorded the FTA transmission (in 4 different formats: PC, Apple, Android and iOS) on Optus’ servers and the customer could then chose to replay the recording at a later time (within 30 days) by having it streamed to their computer, iOS or Android device. All customers got some storage (45 minutes) as part of their subscription, but could pay for more. (For Optus’ descriptions see here and here.)
Back in 2006, the law was amended to make it clear that time shifting (what used to be called home taping such as when people had VCRs) or format shifting of FTA broadcasts for personal use did not infringe copyright in the broadcast or any underlying works. See s. 111.
In finding that there was no infringement, Rares J had to deal with 7 issues. For present purposes, however, the key finding was that it did not make any difference whether or not the customer used their own equipment in their own “house” or the equipment was owned by someone else or located elsewhere.
When the legislation to amend s 111 was introduced it underwent some amendment of its own and Rares J noted that the further amendments were stated to be intended to:
“The bill adds new copyright exceptions that permit the recording or copying of copyright material for private and domestic use in some circumstances. This amendment makes it clear that private and domestic use can occur outside a person’s home as well as inside. The amendment ensures that it is clear that, for example, a person who under new section 109A copies music to an iPod can listen to that music in a public place or on public transport. (Rares J’s emphasis)
57 The Minister then explained in the Senate, repeating the words of the Further Supplementary Explanatory Memorandum, why cl 111(1) had been reworded saying (ibid):
“This relates to time shifting. … This amendment substitutes a new section 111(1), which removes the requirement that a recording of a broadcast under section 111 must be made in domestic premises. This amendment provides greater flexibility in the conditions that apply to time-shift recording. The development of digital technologies is likely to result in increasing use of personal consumer devices and other means which enable individuals to record television and radio broadcasts on or off domestic premises. The revised wording of section 111 by this amendment enables an individual to record broadcasts as well as view and listen to the recording outside their homes as well as inside for private and domestic use.” (Rares J’s emphasis)
Thus, it appeared Parliament did not intend to draw a distinction between equipment owned and operated by the viewer in his or her own premises. Accordingly, his Honour considered (at ):
… the user of the TV Now service makes each of the films in the four formats when he or she clicks on the “record” button on the TV Now electronic program guide. This is because the user is solely responsible for the creation of those films. He or she decides whether or not to make the films and only he or she has the means of being able to view them. If the user does not click “record”, no films will be brought into existence that he or she can play back later. The service that TV Now offers the user is substantively no different from a VCR or DVR. Of course, TV Now may offer the user a greater range of playback environments than the means provided by a VCR or DVR, although this can depend on the technologies available to the user.
Like the 2nd Circuit in Cartoon Network, his Honour considered (at ) that there was no real or sufficient distinction between the characterisation of a user of the service to record a FTA broadcast and someone who used a VCR or DVR to do so.
Rares J noted the careful contractual obligations imposed by Optus to ensure that users promised to use the service only for their own private or domestic purposes and, in recognition of the ordinary experience of life, was prepared to infer that was typically the purpose for which the service was used, even apparently in the case of small and business customers.
The other major issue for comment at present is who makes the communication when the customer pressed the “play” button. Rares J recognised that, in a sense, Optus made the communication as it was its servers which transmitted the stream to the customer. Having regard to the deeming provisions in s 22(6) and (6A), however, his Honour considered that the more correct characterisation was that it was the customer him or herself who made the communication. It was the individual customer who decided what was recorded and who also decided whether, when and to where it was transmitted. In reaching this conclusion, Rares J distinguished the situation in Roadshow where a Full Court had found that there could be a communication to the public by transmission of Bittorrent streams between computers without any human intervention. At , Rares J considered that the role of the customer of the TV Now service was very different from that of someone who just clicked on a link on a web page. His Honour commented at :
It may appear odd that Optus, which has stored the films in its NAS computer, does not “communicate” (make available online or electronically transmit) the film in the compatible format, but that is because it did nothing to determine the content of that communication. The user initially chose to record the program so that later he or she could choose to play the film so recorded using the TV Now service. Optus’ service enables the user to make those choices and to give effect to them. But in doing so, Optus does not determine what the user decided to record when he or she later decides to play it on the compatible device he or she is then using to watch the film. Hence, the user, not Optus, is the person responsible for determining the content of the communication within the meaning of s 22(6) when he or she plays a film recorded for him or her on the TV Now service. Thus, the user did the act of electronically transmitting the film within the meaning of ss 86(c) and 87(c).
Needless to say, there are quite a few “other” points in Rares J’s 115 paragraphs:
Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2)  FCA 34
For a more recent “no volitional act, therefore no infringement” case in the USA see Prof Goldman’s ‘Photobucket Qualifies for the 512(c) Safe Harbor (Again)–Wolk v. Kodak‘
There seems to have been a similar success in Singapore; but Rares J considered the TV Catch Up case in the UK less helpful as the legislation and type of usage in question was rather different. A question on communication to the public has been referred by the English court to the CJEU.
Lid dip: Copyright Council