Posts Tagged ‘Telstra’

Optus TV Now (no more)

Friday, April 27th, 2012

The Full Court (Finn, Emmett and Bennett JJ) has unanimously allowed the appeal from Rares J’s finding that Optus TV Now did not infringe the copyright held by the AFL, the NRL and Telstra in broadcasts (or films) of the footy.

Based on the summary, the Full Court has found that Optus either made the copies of the broadcast and films or Optus and the subscriber did so jointly.

As Optus was the (or a) maker, it could not rely on the “home taping” defence provided s 111 as the copy was hardly for “private and domestic use”.

This is, of course, the opposite result to that reached by the Second Circuit in the US in the Cartoon Network case in different legislative setting.

The second point would seem to follow necessarily from the first, but the first could render the protection of s 22(6) largely nugatory to those who carry transmissions of infringing material across their networks. The reasoning on this point will need closer consideration. Of course, Optus was storing the copy longer than may be the case of an ISP whose network is used to download some infringing material. Wonder what this provision means?

National Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCAFC 59

Lid dip Australian Copyright Council

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Optus wins first round of Optus TV Now!

Wednesday, February 1st, 2012

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)

and

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 [63]):

… 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 [66]) 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 [91], 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 [95]:

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) [2012] 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

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Optus TV Now … 2

Monday, September 19th, 2011

Follow last Friday’s post, in the twittersphere @wenhu points out that s 22(6) defines who the maker of a communication is:

(6)  For the purposes of this Act, a communication other than a broadcast is taken to have been made by the person responsible for determining the content of the communication.

(6A)  To avoid doubt, for the purposes of subsection (6), a person is not responsible for determining the content of a communication merely because the person takes one or more steps for the purpose of:

                     (a)  gaining access to what is made available online by someone else in the communication; or

(b)  receiving the electronic transmission of which the communication consists.

Example:    A person is not responsible for determining the content of the communication to the person of a web page merely because the person clicks on a link to gain access to the page.

It’s a good point, but I’m not sure at first impression why that doesn’t make the subscriber the maker.

Section 22(6) was introduced as part of the legislative clean-up of the mess made in the Music on Hold case –  to make it clear the telephone company was not communicating the music played by the subscriber to a caller when they were placed on hold. For example, para. 40 of the EM explains:

40.    The new s.22(6) provides that a communication other than a broadcast is taken to have been made by the person responsible for the content of the communication.  This provision relies on the extended definition of communicate in Item 6.  The provision has the effect that communications carriers and Internet Service Providers will not be directly liable for communicating material to the public via their networks if they are not responsible for determining the content of that material.

Meanwhile in the comments “Copyright Fanatic” asks why Optus TV Now is any different to using your TIVO at home? That (if the media reports are to be believed) is the $153 million question: is using someone else’s servers in some other point in cadastral space different to using your own equipment in the privacy of your own home?

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Optus TV Now and the threat to sports’ millions

Friday, September 16th, 2011

The media yesterday was splashed with stories about how Optus is threatening the flow of revenues to sports such as the NRL and the AFL through its TV Now service (for example, here and here and here). Hundreds of millions of dollars are apparently at stake.

Basically, it looks like you download an “app” to your phone or computer and you can then record (or perhaps more strictly, instruct Optus to record) a television program being broadcast on free to air television on Optus’ servers and then have the recording streamed to your mobile or computer at a time and place of your choosing – Optus’ promotional video suggests as your sitting on the bus. The media reports suggest you might be able to start watching as soon as 2 minutes after the game program starts broadcasting. There are a few constraints: You have to watch within 30 days of the recording. You can only nominate programs broadcast in the area where your account address is located. It looks like, if you’re an Optus (mobile) subscriber you get 45 minutes storage “free”, but you can “buy” more if you want.

Optus’ version of how it works here and here.

It is billed as just like home taping or recording only for the 21st century.

Optus is reported to be seeking an injunction against the AFL and the NRL to stop them suing it for copyright infringement. In fact, Optus has brought proceedings against both the NRL and the AFL and the first directions hearing was heard by Rares J today: NSD1430/2011. Rares J made timetabling orders for defences (and cross-claims) and evidence with the trial fixed for 19 December 2011.

The injunction part is easy: someone who is on the receiving end of threats of copyright infringement can bring an action for groundless threats of infringement and, if successful, the remedies include an injunction against continuation of the threats and possibly damages for loss suffered.

Presumably, the AFL and/or the NRL sent Optus letters of demand telling it to stop or else. If so, there will be a threat and then it will be over to the AFL and/or the NRL to establish that what Optus is doing infringes their copyright.

In the case of a (largely unscripted) sporting spectacle like a footy final, the copyright is going to subsist only in the broadcast (hmmm, what about the jumpers and logos and ….)

I am guessing (but I don’t know) that the AFL’s and the NRL’s contracts with the broadcasters involve the broadcasters assigning their copyright in the broadcast to, respectively, the AFL and the NRL.

As I haven’t seen Optus’ claim or, more likely, defence to cross-claim, I am also guessing Optus will be relying on s 111 of the Copyright Act:

(1) This section applies if a person makes a cinematograph film or sound recording of a broadcast solely for private and domestic use by watching or listening to the material broadcast at a time more convenient than the time when the broadcast is made. Note: Subsection 10(1) defines broadcast as a communication to the public delivered by a broadcasting service within the meaning of the Broadcasting Services Act 1992 . Making the film or recording does not infringe copyright

(2) The making of the film or recording does not infringe copyright in the broadcast or in any work or other subject-matter included in the broadcast.

Note: Even though the making of the film or recording does not infringe that copyright, that copyright may be infringed if a copy of the film or recording is made.

Dealing with embodiment of film or recording

(3) Subsection (2) is taken never to have applied if an article or thing embodying the film or recording is:

(a) sold; or

(b) let for hire; or

(c) by way of trade offered or exposed for sale or hire; or

(d) distributed for the purpose of trade or otherwise; or

(e) used for causing the film or recording to be seen or heard in public; or

(f) used for broadcasting the film or recording.

Note: If the article or thing embodying the film or recording is dealt with as described in subsection (3), then copyright may be infringed not only by the making of the article or thing but also by the dealing with the article or thing.

(4) To avoid doubt, paragraph (3)(d) does not apply to a loan of the article or thing by the lender to a member of the lender’s family or household for the member’s private and domestic use.

The first thing here will be who makes the recording. Will the Optus subscriber’s use of the technology to get a recording made on Optus’ servers (in the cloud) mean that the subscriber is the person who makes the recording or will it be Optus?

If Optus is the person who makes the recording (a) can the subscriber delegate the making to them as an agent or (b) does the recording need to be made for Optus’ private and domestic use or will the private and domestic use of its subscriber suffice?

As to who makes the recording, the US Circuit Court of Appeals for the Second Circuit in the rather different legislative setting of the US Copyright Act considered that the party in the position of Optus did not make the recording: Cartoon Network v Cablevision Inc. 536 F. 3d 121.

On the other hand, while recognising the possibility of a person making a fair dealing copy through an agent, in Australia Beaumont J found that a news monitoring service infringed copyright by making clippings of newspaper articles for its clients. While the clients may have had a relevant fair dealing purpose, the news monitoring service’s purpose was not a fair dealing purpose but a commercial purpose of making copies for its clients: De Garis v Nevill Jeffris Pidler Pty Limited [1990] FCA 218.

(You will have noticed that s 111(2) applies to not just to the copyright in the broadcast, but also any other copyright included in the broadcast. So that takes care of the logo, jumpers and all the other copyrights in scripted shows like, er, Home and Away etc.)

Section 111(2) only immunises the making of the recording. What happens when Optus streams the recording back to the subscriber? If it is set up so that the recording is streamed only to the individual subscriber, it will be difficult to call it a broadcast. But is it otherwise a communication to the public? This might turn on whether the communication is made by the subscriber (or his or her agent) to themselves or Optus. In the Music on Hold case (largely superseded now as a result of significant changes in the legislation), Dawson and Gaudron JJ emphasised that the public were people whom the copyright owner might fairly regard as its public and downplayed the number of persons involved. Will the commercial nature of Optus relationship with its subscribers colour the characterisation of this situation?

I guess we will have to wait and see.

Singtel Optus v National Rugby League and the Australian Football League NSD1430/2011.

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Telstra v PDC update

Thursday, September 8th, 2011

The transcript of Telstra’s unsuccessful application for special leave has now been posted here.

The Sydney Morning Herald speculates that Telstra is seeking talks with the Attorney General “to close the loophole”.

One consequence of the High Court’s revolution in copyright law is that the privacy regime which prevents the use of the Integrated Public Number Database (and IPND Industry Code) to create reverse-number directories has been undermined.

As its name suggests, a reverse-number directory is one where you have the telephone number and you can use it to identify who the subscriber is. Now, you may question whether that is an invasion of privacy (and many people happily (or maybe unknowingly) permit their telephone number to be transmitted to the person they are calling, but Parliament, the ALRC and the Privacy Commissioner (pdf see p. 402) have taken the view that it is, or should be.

Now, it could well be argued that copyright (I mean) a sui-generis database protection right would be a blunt instrument for protection of privacy and that privacy concerns would be better addressed, if necessary, by amending privacy laws. The economic case for database protection, therefore, would be key.

The Full Federal Court’s decision from which leave was not granted.

Lid dip: Copyright Council.

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Telstra v PDC special leave

Friday, September 2nd, 2011

The High Court (Gummow and Bell JJ) refused Telstra’s special leave application this morning.

Young QC for Telstra ran hard on the concurrent findings that there was human skill and effort in the collection and verification of the data. However, that ran up against Yates J‘s findings at [167] – [169] and Keane CJ’s findings at [89] – [90].

At [113], Perram J had said:

Had the tasks been attended to manually an original work would have ensued.

Which might seem a very strange, technology specific approach to take in this day and age.

Bell J, however, challenged Young QC about the difference between “computer-assisted” and “computer-generated”. Gummow J at one point stated, you need a database directive.

One might wonder whether allowing special leave in this case would have thrown any light on the differences in approach between the two judgments in IceTV. In November, the Full Federal Court is scheduled to hear an appeal in Dynamic Supplies. Who knows whether it will get there or not. If it did, however, it might present an interesting vehicle for exploring the new world which IceTV ushered in.

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Amazon’s 1-click in Australia

Monday, May 16th, 2011

On Telstra’s opposition to the grant of Amazon’s 1-click patent in Australia, the Commissioner’s delegate has found that:

  • claims 1, 2 and 4 to 61 were invalid;
  • but:

It seems to me that the use to which server generated client identifiers [i.e., cookies] are put in the present invention is both an elegant and inventive way of achieving one action ordering functionality. Therefore I consider that any of the claims having this integer fulfil the requirement of subparagraph 18(1)(b)(ii) of involving an inventive step. These are claims 3 and 62 to 141.

Patentology has a detailed consideration here.

DCC takes a slightly different tack.

Telstra Corporation Limited v Amazon.com, Inc. [2011] APO 28

The specification in AU 762715 (pdf)

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IPwars in Belorussia

Friday, April 1st, 2011

Mr Bohdan Zograf has very kindly translated the IPwars post on Telstra v PDC into Belorussian for the benefit (one hopes) of everyone in Belorussia interested in IP!

Those of you with the appropriate linguistic skills can see it here.

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Still no copyright in (telephone) directories DownUnder

Wednesday, December 15th, 2010

The Full Court (Keane CJ, Perram and Yates JJ) have dismissed Telstra’s appeal in the Phone Directories case.

First impressions.

Given the (arguably) disparate reasoning in the 2 judgments in IceTV, the Chief Judge has to weave a rather tricky path. His Honour nonetheless clearly recognised:

[79] The reasoning of all the judges of the High Court in IceTV requires a revision of the relevance of skill and labour to the subsistence of copyright. ….

[82] The dicta in IceTV shift the focus of inquiry away from a concern with the protection of the interests of a party who has contributed labour and expense to the production of a work, to the “particular form of expression” which is said to constitute an original literary work, and to the requirement of the Act “that the work originates with an author or joint authors from some independent intellectual effort”.

Keane CJ then distinguished Desktop Marketing:

[86] On behalf of the appellants, it is argued that this case can be decided in favour of the respondents only if all the cases which have upheld claims to copyright in compilations (which are collected in Desktop Marketing) can be said to have been wrongly decided. But that is not so. None of those cases, nor Desktop Marketing itself, involved automated compilation as opposed to compilation by individuals. The decision of this Court in Desktop Marketing (and the older cases to which it referred) did not advert at all to the effect of an automated process in the making of the compilation in respect of which copyright was said to subsist.

(See also per Yates J at [177].) Accordingly, Keane CJ advanced as the principal reason for dismissing the appeal:

[89] The compilation of the directories was overwhelmingly the work of the Genesis Computer System or its predecessors. The selection of data and its arrangement in the form presented in each directory occurred only at “the book extract” or “book production” process. The compilations which emerged from the operation of the computer system do not originate from an individual or group of individuals. Indeed, none of the individuals who contributed to the production of the directories had any conception of the actual form in which they were finally expressed.
[90] In my respectful opinion, the decision of the trial judge must be upheld on the basis that the findings of primary fact made by her Honour establish that the WPDs and YPDs are not compiled by individuals but by the automated processes of the Genesis Computer System or its predecessors. That being so, it is neither necessary nor relevant to seek to come to a conclusion as to the sufficiency of the intellectual effort deployed by those individuals who provide data input to the computerised database. Their activities are not part of the activity of compilation: they do not select, arrange and present that data in the form in which it is published.

Similarly, Yates J said:

[130] In my view the primary judge was correct in concluding that the relevant compilations in the White Pages Directories (WPDs) and the Yellow Pages Directories (YPDs) for particular regions, as published by the appellants, were not original literary works for copyright purposes. The primary judge advanced a number of reasons for coming to that conclusion, including that much of the contribution to each work was not the result of human authorship but was computer-generated: at [5(2.3)]. In my view that finding alone justified the conclusion to which her Honour came on the question of copyright subsistence and is determinative of this appeal.

See also [165] and [167].

Perram J appears to have reached the same point albeit by what may rather be a somewhat different route. First, his Honour was willing to accept that the labour and effort spent in collecting, verifying and correcting the information may have assisted in establishing that the directories were original in the limited sense of not being copied from some other source. However, it did not qualify as “independent intellectual effort” (IceTV at [33]) or “sufficient effort of a literary nature” (IceTV at [99]” since it was not directed to the reduction of the collected data into the material form comprised of the directories. (See [104] and [112].)

Ultimately

[118] The Act does not presently deal explicitly with the impact of software on authorship (although this is not so in the United Kingdom: s 9(3) Copyright, Designs and Patents Act 1988 (UK)). But a computer program is a tool and it is natural to think that the author of a work generated by a computer program will ordinarily be the person in control of that program. However, care must taken to ensure that the efforts of that person can be seen as being directed to the reduction of a work into a material form. Software comes in a variety of forms and the tasks performed by it range from the trivial to the substantial. So long as the person controlling the program can be seen as directing or fashioning the material form of the work there is no particular danger in viewing that person as the work’s author. But there will be cases where the person operating a program is not controlling the nature of the material form produced by it and in those cases that person will not contribute sufficient independent intellectual effort or sufficient effort of a literary nature to the creation of that form to constitute that person as its author: a plane with its autopilot engaged is flying itself. In such cases, the performance by a computer of functions ordinarily performed by human authors will mean that copyright does not subsist in the work thus created. Those observations are important to this case because they deny the possibility that Mr Vormwald or Mr Cooper were the authors of the directories. They did not guide the creation of the material form of the directories using the programs and their efforts were not, therefore, sufficient for the purposes of originality.

Accordingly, as there were no human authors of the directories, they were not original works.

In taking this approach, it seems likely that it will prove very difficult for those using computer systems to store and manipulate data and to produce complicated “print outs” to claim copyright in those products.

On a more cheerful note, Keane CJ and Perram J both recognised the impracticality of a requirement that a copyright claimant must identify all the human authors by name.

Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCAFC 149

Lid dip “Rounders1990” (who presumably must update himself to “Rounders2010″).

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Copyright fest in Melbourne

Friday, February 26th, 2010

IPRIA and CMCL at Melbourne Uni. are holding a half-day forum on 18 March on:

  • iiNet
  • Larrikin (Down Under)
  • Telstra v PDC

Speakers are:

 

David Brennan, Melbourne Law School
Melissa de Zwart, University of South Australia
David Lindsay, Monash University
Beth Webster, Intellectual Property Research Institute of Australia
Philip Williams, Frontier Economics
Details and registration here.
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