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Optus Loses Second Battle In Aussie TV-Timeshifting Battle

Soulskill posted more than 2 years ago | from the copyright-dominance-games dept.

Australia 38

beaverdownunder writes "After winning an initial legal battle to continue its mobile 'TV Now' terrestrial-television re-broadcasting service, Optus has lost a second battle in Australian Federal court. The Optus system 'time-shifted' broadcast signals by two minutes, and then streamed them to customers' mobile phones. In the previous ruling, the judge sided with Optus' argument that since the customer requested the service, they were the ones recording the signal, and thus it was fair-use under Australian copyright law. However, the new ruling declared Optus to be the true entity recording and re-distributing the broadcasts, and thus in violation of the law. There has been no word yet on whether Optus will appeal the decision, but as they could be retroactively liable for a great deal of damages, it is almost certain that they will."

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Obligatory xzibit: (0)

Anonymous Coward | more than 2 years ago | (#39832803)

Yo dawg, we heard you like fighting, so we put a couple battles in your battle so you can fight while you fight!

(Maybe /. editors should ... Never mind, I just remembered we don't have editors.)

Surely not harming the copyright holders? (3)

jbuk (1581659) | more than 2 years ago | (#39832807)

I don't see how this lawsuit can be for any purpose other than to make money out of Optus. Two minutes is an incredibly short amount of time, and is not allowing the customer to re-watch their programs at a later point in time, or anything like that which could conceivably leave the copyright holders out of pocket.

Re:Surely not harming the copyright holders? (1)

LocalH (28506) | more than 2 years ago | (#39832907)

I agree, especially since it doesn't seem that Optus is emphasizing the ability to watch football matches, but merely the ability to watch any FTA channel, regardless of content. Seems like they could get around the ruling by using the football schedule to block specific channels from being viewed at those times. That way, they can't claim "hey, you're streaming our football matches without license!" because they're not streaming the football matches.

Re:Surely not harming the copyright holders? (1)

shoehornjob (1632387) | more than 2 years ago | (#39833047)

If this was America I'd say that someone bought themselves a judge. I don't know how things work down there but the whole thing seems stupid.

Re:Surely not harming the copyright holders? (1)

Anonymous Coward | more than 2 years ago | (#39832927)

Any monetary spoils are beside the point. This is just one battle in a bigger war. This is about controlling all distribution channels in order to maintain a hegemony, which is where the real money is...

Re:Surely not harming the copyright holders? (2)

Internetuser1248 (1787630) | more than 2 years ago | (#39834411)

Any monetary spoils are beside the point. This is just one battle in a bigger war. This is about controlling all distribution channels in order to maintain a hegemony, which is where the real money is...

Exactly, if optus are allowed to do this they can legally build a national service capable of delivering video to cellphones nationwide. Then they can start offering their own content which is not owned by any tv licence holder, while still reaching the mindless tv watcher zombies market. This would inevitably result in the public seeing perspectives and facts that have not been pre-approved by the Murdoch global media hegemony (well maybe not global, but in Australia it is 99.9% of media). Then people might find out how badly the establishment is fucking them in the ass and do something about it.

Like everything, it is about power not money.

Re:Surely not harming the copyright holders? (0)

Anonymous Coward | more than 2 years ago | (#39832929)

Slow clap. Way to go for reading comprehension. So you are trying to say that the pay tv right holder who paid a assload.of money for the exclusive right to broadcast these games before anyone else is not getting ripped off by this shitty operator who claims they are rebroadcasting “not live” and not paying for the exclusive right to broadcast live games? As anaustralian i want the morons who.watch this shit to pay for the priveldge so the rest of us who dont give a rats can point to these multi million dollar deals as jsutification for us poor slobs subsidising the shite to stop.doing so.

Re:Surely not harming the copyright holders? (2)

FatLittleMonkey (1341387) | more than 2 years ago | (#39833061)

Way to go for reading comprehension. So you are trying to say that the pay tv right holder

Speaking of reading comprehension, feel free to find anything about pay-tv in TFS or TFA. Did you notice the part in TFS where it said "terrestrial-television"? In other words, the free-to-air channels. Or in TFA: "Optus began offering its customers the ability to record any free-to-air television program"

Optus played the role of a digital Freeview recorder for it's cellphone customers. It is merely allowing viewers to record and watch freely available TV channels, just as they are legally allowed to at home.

Re:Surely not harming the copyright holders? (0)

Anonymous Coward | more than 2 years ago | (#39833407)

Actually this is rather interesting. In the end it boils down to the old license for content vs a license for content on a particular medium thing that has been done to death on slashdot.

For those that didn't read the article, essentially the service which Optus provide simply allows a user to record any free-to-air broadcast and then stream that recording to a mobile device. Remember this is free-to-air broadcast content. If the mobile device had a tuner / capture device in it then the user could watch the broadcast live, for free, as can anybody else with a TV. Obviously having a DTV tuner in your iPhone isn't currently an option (reception, size, power, etc) and the solution Optus would seem fair / reasonable from a free-to-air watchers perspective. The problem is that the content holders are trying to double dip for royalties by saying that the same free content retransmitted on any other medium (internet, carrier pigeons, etc) requires additional licenses. Obviously Telstra and Optus fought for these and as a result Telstra is now paying a fortune for exclusive rights to content that would otherwise be free and Optus is locked out completely.

It's something that you should be familiar with as a consumer in Australia when buying music. You have the rights to the music, on the media it came on; transferring it to your iPhone/iPod meant you were infringing on copyright. Many people still chose to do it - everybody knew the law just simply hadn't kept up with the technology - but at the time if you did it you were letter of the law infringing copyright. The law has slowly started to catch up, recognising that content is content regardless of the storage / distribution medium but at this time (at least until late 2013, when we may finally be able to legally backup owned DVDs!) Optus appear to still be screwed.

Either way you're probably screwed as a FTA consumer in Australia anyway. If the Telstra/AFL/NRL monopoly stands then other content providers will follow suit and we will end up in a situation where you'll have to check a program guide to see whether the show can be viewed on Optus/Telstra/Vodaphone mobile networks and the cost of your phone bill will go up to cover the cost of licensing competition for FTA content. If we go the other way though I'm sure that the revenue generated from double dipping will have to be made selling the content at higher premiums to the FTA networks. This means less money for the already bleeding Seven/Nine/Ten to purchase programming, and in turn, an even worse experience than you are subject to now.

Disclaimer: I don't watch NRL/AFL but I wouldn't mind being able to stream FTA content on my phone while I'm on the train home from work ;)

Re:Surely not harming the copyright holders? (1)

TranquilVoid (2444228) | more than 2 years ago | (#39840855)

Yes, there's an interesting line between re-broadcasting someone else's content and hosting a cloud DVR. I tend to favour Optus is this matter as they really are setting up an online service for, say, people who are not going to do their own MythTV box. When this sort of virtual device hosting is ubiquitous this court decision will seem dated.

Note the AFL executive's quote; "It's a great win, certainly it's more of a victory for our funding [...] common sense has prevailed." He starts off honest but then suggests it's common sense to protect their funding model.

Eventually it will be a moot point when smart phones contain their own free-to-air chips.

Re:Surely not harming the copyright holders? (1)

Chuck Chunder (21021) | more than 2 years ago | (#39834039)

Of course it harms the copyright holder and the "short amount of time" is part of the problem for them. The rights holders for live sport will not be able to sell the distribution rights for online/mobile for a decent amount of money if any company can distribute the content with a minimal delay.

You have to wonder what Optus were thinking. It was always a legally dubious idea with too much money at stake for them not to get sued and their best case scenario leaves them with no long term advantage, their competitors in the marketplace could then equally do it or the law will be changed to remove the loophole. IE a lot of risk for very little reward. Perhaps worth it if you are a small company with little to lose a la Napster but a strange move for an established company.

Re:Surely not harming the copyright holders? (1)

thegarbz (1787294) | more than 2 years ago | (#39834121)

I don't see how this lawsuit can be for any purpose other than to make money out of Optus. Two minutes is an incredibly short amount of time, and is not allowing the customer to re-watch their programs at a later point in time, or anything like that which could conceivably leave the copyright holders out of pocket.

It's a licensing agreement issue. Optus' competitors pay a HUGE fee to be the exclusive broadcaster of the footy in real time. Optus essentially says we'll just record the free-to-air feed and play it back later on the device.

It's not about preventing customers from re-watching programs later, it's about preventing customers from watching the footy on Optus mobiles when Telstra has paid a small fortune for exclusive rights to such a feature.

As always, customer loses.

If this were legal, Football would die! (1)

xQx (5744) | more than 2 years ago | (#39834817)

This is a very interesting case. In Australia it is legal to record from the TV for personal use. Telstra has paid the Australian football federations a huge amount of money for the digital streaming rights for their content. Optus essentially side-stepped this by allowing individuals to use a hosted PVR to record the Free-to-Air transmission, and play it back on their mobile device.

Telstra. the AFL and the NRL did a huge media campaign about how Optus was 'stealing' their content - but the first judge ruled it legal, and frankly - it's not Autralia's fault if our biggest Telco buys something for millions of dollars that turns out to be worth stuff-all (didn't stop them threatening to change the laws, because just like the argument for pokies - if the AFL and NRL can't sell these new media rights for millions of dollars, they'll go belly up and nobody in Australia will ever be able to watch the football again - even though football has existed for many years before new-media rights existed, and that there is considerable evidence to say that the more people who have access to watch a sport on TV are then more likely to go to a game - Telstra had millions of dollars at stake here!).

Optus's argument was that it is no different from someone doing the same thing with a PVR at home - which was protected under Australia's fair-use laws. The very interesting thing about this case is that the full bench of the federal court (the second highest court in the land) overruled the first judgement (which was: "Yes, it is the same, and it's not illegal") and said: 'Because Optus wrote the software that records the TV, because they host the servers and hardware, and without Optus's help, nothing would be recorded - the subscriber may _cause_ the recording to be created, but Optus are the ones that actually create it. Therefore, because it is Optus creating the recording, not the subscriber, you are not protected by our Domestic fair-use laws".

This is interesting because not last week the _exact same court_ upheld the rights for an ISP to not be responsible for their users' copyright infringements - but in this case they ruled that in the capacity of a cloud-hosting provider - they were responsible for their user's actions - because their server & software did the copying.

So now, in Australia it is legal to record from Free-to-air TV and stream it to your own mobile device as long as you own the hardware. It is legal to make the software that allows people to do that, and it is legal to sell hardware devices that let them do exactly that - but: If a company does _exactly the same thing_ as a hosted provider - it's illegal.

So, what does that mean if someone runs bit-torrent on a hosted virtual server that I provide? ... or, if someone uses a virtual server to steal my content - should I sue the end-user (who has no money), or the cloud provider (who will probably settle to avoid going to court)?

Re:Surely not harming the copyright holders? (1)

TheVelvetFlamebait (986083) | more than 2 years ago | (#39835785)

The copyright holders were receiving a sum of money from Telstra to be the exclusive broadcaster of he NRL on mobile devices. Naturally, if Optus could get away with it, then both Telstra and the NRL lose a lot of money.

they want to charge extra. (1)

gl4ss (559668) | more than 2 years ago | (#39838435)

What, you mean someone offering a service they could be paying extra money for isn't hurting the copyright owners?
of course, that way everything is hurting them. even you not watching them.

QOTD (0)

Anonymous Coward | more than 2 years ago | (#39832811)

o/t, sorry. I couldn't help but notice the qotd was a bit off. Looks like Mr. Franklin accidentally the whole quote.

Would this be illegal? (2)

wmbetts (1306001) | more than 2 years ago | (#39833095)

If I pay for my own antenna, hook it up to a server, record everything it can possible pickup, and then retransmit it to myself would that be illegal? If it's not then why would me renting all the equipment to do that be illegal? It sounds like that's basically what you're doing when you use their service.

Re:Would this be illegal? (0)

Anonymous Coward | more than 2 years ago | (#39833251)

If you actually read the summary, you'd see that this second court decision found that it was Optus, not the end consumer, who was doing the recording. They are, therefore, not protected under this fair use proposition you have made. It's amazing what you can get out of the (albeit, typically poorly written) summary.

Re:Would this be illegal? (2)

thegarbz (1787294) | more than 2 years ago | (#39834161)

If you record and re-transmit to yourself it's not illegal. If you however offer this service to someone else then you are in this legal grey area especially when it comes to licensing football broadcasts.

Re:Would this be illegal? (0)

Anonymous Coward | more than 2 years ago | (#39834953)

It is only grey because of made-up "exclusive" licensing.

Re:Would this be illegal? (1)

Chuck Chunder (21021) | more than 2 years ago | (#39834199)

Because your right to do it doesn't magically transfer to Optus. A lot of people seem to be of the opinion that this is bad news but I think it is really good news. If the courts sided with Optus then changes to copyright law to close the loophole would certainly have eventuated, perhaps with other negative side effects in tow.

Disappointed (1)

El Royo (907295) | more than 2 years ago | (#39833101)

I couldn't find any videos of this Octopus fight. :(

Very poorly written "headline" (0)

Anonymous Coward | more than 2 years ago | (#39833131)

Optus Loses Second Battle In Aussie TV-Timeshifting Battle

If the summary is taken as correct, the "headline" is both highly ambiguous and therefore subject to misinterpretation (it sounds like Optus lost two of two 'battles' - the summary says they did not) and poorly written (loses 'battle in battle' - wtf - did the writer run out of words?).

I'm fairly sure that a job a FOX "News" or The Onion awaits whoever wrote that "headline".

Seems Reasonable (1)

RandomUsername99 (574692) | more than 2 years ago | (#39833231)

Is it sad that this sort of innovation is stifled? It sure is. Is it completely reasonable reading of the situation? I think so.

The ruling said nothing more than it was the company who designed and operated the system, including all of the equipment that was recording the signals, that was actually doing the recording, not the customer. There weren't even damages awarded.

The company said that since the customer started the process themselves, they were actually the ones that were making the recording.

As an analog, I see a vending machine with an illegal item.
Their argument:
The customer was legally responsible for the sale, because they were selling it to themselves; they put into motion the mechanical process for the machine to deliver it to them. The vending company, who simply provided the mechanical elements to facilitate the transaction between the manufacturer and the customer, and provided those mechanical elements with the product to sell, had nothing to do with what was actually being delivered. ...yeah.

Is there a more accurate legal analog that contradicts this? From my perspective, it does seem completely reasonable.

Re:Seems Reasonable (1)

xQx (5744) | more than 2 years ago | (#39834851)

Sure, I'll give you an analogue...

Winchester make firearms, now say for the sake of argument, they own a gun club, and the allow people to use their firearms but Winchester own and maintain them.

Now, a gun-club member takes one of the Winchester firearms and shoots a fellow member in the head.

So, since the member pulled the trigger, they were instrumental in causing the person to die, but they didn't actually _do_ it. Because if Winchester had not created and maintained the firearm, the trigger action would not have caused the bullet to leave the weapon, so nobody would have died.

Therefore, Winchester was responsible for this death, not the person pulling the trigger.

However, if Winchester had created the gun and SOLD it to the individual, then it's clear-cut murder.

Re:Seems Reasonable (1)

gl4ss (559668) | more than 2 years ago | (#39838475)

your reasoning would be apt ----- except that it's totally legal to sell that equipment to the consumer that optus is using and for the consumer to use that equipment..

so the vending machine could be filled with machines that did this timeshift-retransmit and there would be nothing illegal about it. your vending machine analogy is stupid, because it doesn't take anything into account about this situation.

Re:Seems Reasonable (1)

RandomUsername99 (574692) | more than 2 years ago | (#39921057)

Do you understand what an analogy is? The idea is to create a similar situation that'd different, and then analyze it so we can get a better understand of it.

Furthermore, simply calling an argument stupid, without actually providing any alternative, when the person presenting the argument clearly asked for counterarguments, is stupid. I'm guessing you don't have a lot of friends.

simple to fix (0)

Anonymous Coward | more than 2 years ago | (#39833341)

just add a customer record button and/or scheduling
to the client app

jr

The Courtroom (1)

ThePeices (635180) | more than 2 years ago | (#39833589)

The Courtroom. Where great ideas go to die.

Definitely a loss (0)

Anonymous Coward | more than 2 years ago | (#39833593)

Goddamned copyright law.
I guess now all those customers might actually do something useful during the time they used to spend watching mobile TV.

Who's copyright is it anyway? (1)

Eth1csGrad1ent (1175557) | more than 2 years ago | (#39834381)

While I understand that the AFL and Telstra have a lot invested in the outcome of this... I don't understand how they're the ones bringing the case against Optus.

Optus is recording the Channel 7 feed in its entirety on behalf of the user - there is no dispute about this.

Apart from making Telstra's product worthless, what does this case have to do with them? Its not Telstra's content that Optus is recording - its Channel 's
Apart from making the AFL's deal with Telstra worthless, what does this case have to do with them? Again, its not the AFL's content that Optus is recording - its Channel 7's

So where is Channel 7 in all of this? Nowhere - they're getting their feed, including ads, distributed via the internet and, thus, reaching a wider audience - they'd be quite ok what that.

So how are the AFL and Telstra bringing a copyright case against Optus for content that isn't theirs?

Re:Who's copyright is it anyway? (0)

Anonymous Coward | more than 2 years ago | (#39834589)

AFL own the copyright. Seven are licensed to use it (as are Telstra). The fact that seven "don't mind" (if in fact they don't) is irrelevant.

If you think it through with a few other examples you will realize the logic is faulty (e.g. If dell distribute Windows with a pc can I make copies of Windows as long as dell doesn't mind?)

Re:Who's copyright is it anyway? (1)

jeffrey.endres (1630883) | more than 2 years ago | (#39835401)

If dell distribute Windows with a pc can I make copies of Windows as long as dell doesn't mind?

Good example. Yes you can make a copy of Windows for transferring to another computer you own if it was a fully licensed version of Windows. (The user can freely view the transmission on Free To Air TV and record for personal viewing later)

Now, I take my Dell laptop in to the repair shop (Optus) and ask them to transfer my OS to my new Asus laptop. (ignoring OEM licensing restrictions which don't apply to the FTA TV rights). The repairman is allowed to charge a fee for the service and no copyright has been broken.

A rival repair shop (Telstra) has a problem because they've paid lots of money to MS (the AFL) to have a badge that says authorised Windows copiers. To bad for them that you don't (and shouldn't) need to have it copied by an authorised copier.

If the AFL wants to stop this, they could move to pay TV only. Fat chance of that happening.

Re:Who's copyright is it anyway? (1)

gl4ss (559668) | more than 2 years ago | (#39838497)

correct, they're bringing it to the courts because AFL sold the rights to stream the matches over the internet to Telstra for a sizable sum. They invented the right to monopoly on the internet for this service for their own purposes.

A big win for vested interests! (0)

Anonymous Coward | more than 2 years ago | (#39834809)

This is a very interesting case. In Australia it is legal to record from the TV for personal use. Telstra has paid the Australian football federations a huge amount of money for the digital streaming rights for their content. Optus essentially side-stepped this by allowing individuals to use a hosted PVR to record the Free-to-Air transmission, and play it back on their mobile device.

Telstra. the AFL and the NRL did a huge media campaign about how Optus was 'stealing' their content - but the first judge ruled it legal, and frankly - it's not Autralia's fault if our biggest Telco buys something for millions of dollars that turns out to be worth stuff-all (didn't stop them threatening to change the laws, because just like the argument for pokies - if the AFL and NRL can't sell these new media rights for millions of dollars, they'll go belly up and nobody in Australia will ever be able to watch the football again - even though football has existed for many years before new-media rights existed, and that there is considerable evidence to say that the more people who have access to watch a sport on TV are then more likely to go to a game - Telstra had millions of dollars at stake here!).

Optus's argument was that it is no different from someone doing the same thing with a PVR at home - which was protected under Australia's fair-use laws. The very interesting thing about this case is that the full bench of the federal court (the second highest court in the land) overruled the first judgement (which was: "Yes, it is the same, and it's not illegal") and said: 'Because Optus wrote the software that records the TV, because they host the servers and hardware, and without Optus's help, nothing would be recorded - the subscriber may _cause_ the recording to be created, but Optus are the ones that actually create it. Therefore, because it is Optus creating the recording, not the subscriber, you are not protected by our Domestic fair-use laws".

This is interesting because not last week the _exact same court_ upheld the rights for an ISP to not be responsible for their users' copyright infringements - but in this case they ruled that in the capacity of a cloud-hosting provider - they were responsible for their user's actions - because their server & software did the copying.

So now, in Australia it is legal to record from Free-to-air TV and stream it to your own mobile device as long as you own the hardware. It is legal to make the software that allows people to do that, and it is legal to sell hardware devices that let them do exactly that - but: If a company does _exactly the same thing_ as a hosted provider - it's illegal.

So, what does that mean if someone runs bit-torrent on a hosted virtual server that I provide? ... or, if someone uses a virtual server to steal my content - should I sue the end-user (who has no money), or the cloud provider (who will probably settle to avoid going to court)?

What about the users of this service? (1)

CanEHdian (1098955) | more than 2 years ago | (#39835359)

So what are the users going to do?

This is again one of those cases where a great service is being offered, and some law (or at least the Aussie Federal Court's interpretation of it) stands in the way. Would it be such a stroke of genius for them to figure out that maybe the law should be changed? If Optus is smart, they can direct their customers anger in the right direction.

A possible loop hole. (0)

Anonymous Coward | more than 2 years ago | (#39837013)

Aren't live broadcasts purposefully "timeshifted" by about 7 seconds so someone can press the "SHUTDOWN EVERYTHING" button if something terrible is about to go to air? I wonder if optus could use this to their advantage - have two or more transcribing computers send each other a 7-second-timeshifted stream and loop the stream around the network enough times to make it a sum of 120-ish seconds of timeshifting. It's so redundant and silly, it may just pass through the courts.

buffering? (1)

dr00p (56154) | more than 2 years ago | (#39841973)

Anybody thought that the 2 minute delay might be caused by buffers and recompression to bring it down to cellphone quality?

Next thing you know, buffering will be labeled as pirating ... :x

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