Leagues and Telstra win appeal over Optus TV Now ruling

Australian telco Optus has been forced to suspend its TV Now mobile phone service, which allows subscribers to watch near-live sports programmes originally broadcast on free-to-air television, after Australia’s Federal Court upheld an appeal against the company.

The Australian Football League and the National Rugby League, the governing bodies of Aussie Rules football and rugby league in the country, and the Telstra telco, which is the two leagues’ official live internet rights-holder, challenged an earlier Federal Court ruling that Optus did not breach copyright laws.

“It’s a win for all sports in this country,” Andrew Demetriou, chief executive of the AFL, said. “It’ll be a long time before we speak to Optus.”

TV Now offered access to sports coverage on a short delay through mobile phones. The appeal judges overturned the original ruling, saying that Optus, which does not hold any rights to the leagues, was not protected by an exemption in the country’s Copyright Act which allows recordings for personal and private use.

According to the Sydney Morning Herald, the three appeal judges – Justices Arthur Emmett, Annabelle Bennett and Paul Finn – disagreed with the initial ruling in February that users were solely responsible for making recordings through the TV Now service.

“The subscriber, by selecting the programme to be copied and by confirming that it is to be copied, can properly be said to be the person who instigates the copying. Yet it is Optus which effects it,” the judges said. “[Optus’s] purpose in providing its service – and, hence in making copies of programmes for subscribers – is to derive such market advantage in the digital TV industry as its commercial exploitation can provide.”

Optus, which has 21 days to appeal the decision to the High Court, could be found in breach of the Act for each occasion that customers have already watched matches using TV Now. Individuals who watched games are unlikely to be sued because they had made copies for personal use.

The Judges added, though, that other technologies could provide a similar service in a legal way within the parameters of the Copyright Act.

“While this decision prevents Optus from providing the TV Now Service in its current form, it remains open for Optus, and other service providers, to devise different technology to achieve the same result for consumers without infringing the Copyright Act,” according to Judith Miller, a partner and head of the DLA Piper Australian sports media and entertainment legal practice.

During the appeal process, the complainants lobbied the Australian government in an effort to amend the current Act and prevent future disputes. The government has said it would review the Act.