Mobile madness: Optus decision bad news for codes
Roar Guru By John Davidson, 2 Feb 2012 John Davidson is a Roar Guru
- Tagged:
- AFL, AFL television rights, NRL, NRL television deal, Optus
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The Federal Court’s decision yesterday to allow Optus to broadcast sports matches online and on mobile phones is landmark one.
While in theory, good for Australian sports lovers, it’s a terrible for the likes of the AFL and NRL, which rely on the revenue they receive from selling their exclusive mobile rights.
The AFL has said it is “highly likely” that it will appeal the decision, and surely the NRL and Telstra will follow suit. The case is fairly simple – the Optus TV Now service allows people to record and watch TV (free-to-air not pay TV, which is important to note) on their computers and phones.
The Federal Court ruled that the service had not reached copyright because it was the users were responsible for recording the NRL and AFL games, not Optus, and they were made for private and domestic use. This seems to miss the point – Optus is helping consumers do this, which hurts its main rival, Telstra, which holds the exclusive online and mobile rights.
The battle between the telcos is getting ugly, and the sporting landscape is getting caught up in it. Telstra sits squarely in the camp of the NRL and AFL, as a sponsor and broadcaster partner, while Optus is a digital media partner and major sponsor of the FFA.
Why would Telstra pay millions to the AFL and NRL for exclusive content rights, when Optus customers can get similar sports content for free? Simply, it won’t. They are no longer exclusive.
At the moment, Telstra pays the AFL $153 million for its online and mobile rights. The NRL only gets about $4 million from Telstra for its rights, as well as $10 million in sponsorship, but it is currently negotiating for a much bigger upgrade as part of its larger improved broadcast deal. This decision puts that possibility in danger.
Telstra may now also try and get out its broadcast deal with the AFL in the law isn’t changed. With both the AFL and NRL engaged in expansion and competition for new consumers, not to mention contending with other sports like football and rugby union, every dollar is crucial.
This is a critical time for both sports fans and sports bodies. The way supporters consume sports content is changing, as well all know, with the rise of technology, smartphones, fast broadband, YouTube and the like. With the advent of the National Broadband Network and increased connectivity with mobile devices, the value of online and mobile sports rights will only increase. Less time will be spent watching sport on TV, as more time is spent watching sport on PCs, phones and tablet devices like the iPad.
This certainly won’t be the last we hear of the this case, a larger conflict involving politicians, possible legislation changes, media companies and sporting organisations is just beginning.
At stake are millions of dollars, and more importantly the way in which we as sports fans watch, engage and participate in our favourite sport, not to mention how much we pay for that privilege.
We live in interesting times.
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- AFL, AFL television rights, NRL, NRL television deal, Optus
February 2nd 2012 @ 3:44pm
The_Wookie said | February 2nd 2012 @ 3:44pm | Report comment
The critical part people are missing is that the court basically ruled that the idea is ok, but the judge said that the methods used for streaming the content may breach – which is evidently a seperate lawsuit. So while timeshifting it is ok, using the internet to do so may not be. As Gillon Mclachlan of the AFL said, this is just the preseason of a major case that everyone in the sports media industry will be watching.
February 2nd 2012 @ 3:52pm
KP said | February 2nd 2012 @ 3:52pm | Report comment
Am I missing the point here – you can do this on your VCR/recordable DVD player Tivo/fox recorder anyway. What is the difference with optus doing it on the net?
February 3rd 2012 @ 4:34am
Redb said | February 3rd 2012 @ 4:34am | Report comment
Its not just the net generally, the concern relates specifically to mobile devices.
February 3rd 2012 @ 10:53pm
Trust Me said | February 3rd 2012 @ 10:53pm | Report comment
I can buy a miriad of software packages that allows me to watch FTA on my computer or phone – there’s no law against that.
http://mobiletvpro.com/
Don’t be so precious about your content, Optus have every right to do this. They are just providing the same service, which is FREE to anyone in Australia who can get the signal.
Telstra got ripped off by the AFL paying $153M for the rights.
February 2nd 2012 @ 3:52pm
Brett McKay said | February 2nd 2012 @ 3:52pm | Report comment
hoping someone can explain this to me, because it will help form my opinion on this decision.
I understand that the Optus system allows Bob to record a game/tv show on his TV Now set-up, that’s fine. Does the system then only him to watch that recording on a phone/tablet/pc, or can any other TV Now customer access Bob’s recording??
Because if only Bob can access his recording, then what exactly is the problem here??
February 2nd 2012 @ 3:59pm
Ian Whitchurch said | February 2nd 2012 @ 3:59pm | Report comment
Brett,
Basically, thats what the judge said.
February 2nd 2012 @ 4:10pm
Brett McKay said | February 2nd 2012 @ 4:10pm | Report comment
so Ian, at the risk of asking a stoopid question, how does Bob recording the footy on a setup that happens to utilise the net, but that no-one else can access, affect Telstra’s broadcast rights??
February 2nd 2012 @ 4:12pm
Ian Whitchurch said | February 2nd 2012 @ 4:12pm | Report comment
Telstra was planning to sell you the right to do that on your internet-enabled mobile phone.
Instead, Optus – and anyone else – are able to let you do that on your internet-enabled mobile phone.
The decision also means you can rebroadcast, say, channel 7′s coverage of the West Coast Eagles game into Brisbane ahead of when channel 7 was planning to do so, as long as you do it via the internet to one customer at a time.
February 2nd 2012 @ 4:15pm
The Cattery said | February 2nd 2012 @ 4:15pm | Report comment
Brett
I too am yet to fully understand the ins and outs of this case, or the full ramifications, but for starters, we know that Telstra has paid for exclusive online rights, i.e. it pays $153 mill thinking that anyone wanting to use a mobile device or PC to watch footy is doing it through Telstra, but then discovers that people can watch without using Telstra, which sort of defeats the purpose of having exclusive online rights.
February 2nd 2012 @ 4:16pm
Ian Whitchurch said | February 2nd 2012 @ 4:16pm | Report comment
Cattery,
Telstra are big boys and girls, and had the ability to pay for their own lawyers.
February 2nd 2012 @ 4:20pm
The Cattery said | February 2nd 2012 @ 4:20pm | Report comment
They can also pay for lobbyists – if the current copyright legislation is defective in this regard, or is already behind the times, one expects their lobbyists will be in and out of the house on the hill until they plug it.
February 2nd 2012 @ 4:20pm
AndyS said | February 2nd 2012 @ 4:20pm | Report comment
But how is that different from Foxtel and FTA showing the same match at the same time? Some will watch the cheap option, others will watch the uninterrupted, but Fox still pays for the rights and sees it as worthwhile…
February 2nd 2012 @ 5:06pm
The Cattery said | February 2nd 2012 @ 5:06pm | Report comment
Andy
As far as the general time-shifting aspect goes (discussed further by Brett and Ian below), you might be right, but as far as watching content on mobile devices, if Telstra paid $153 mill thinking the only way you could watch it on such devices was via them, and it turns out that’s not true, they’d be pretty upset about paying $153 mill for that.
February 2nd 2012 @ 4:23pm
Brett McKay said | February 2nd 2012 @ 4:23pm | Report comment
Catters, I get that bit, and even without knowing how the Optus system works I understand why Telstra would be protective of what it had been sold as ‘exclusive’.
What I don’t get is how the Optus system works. If it lets you record a game and then stream that recording to anyone on the Optus network, then like the illegal streams on the net, I get Telstra’s point.
But if the only person that can access your stream is you, then what’s the issue? The key question that will help me understand this (I hope) is can anyone access my recordings?
February 2nd 2012 @ 4:32pm
Ian Whitchurch said | February 2nd 2012 @ 4:32pm | Report comment
If they sit down on the couch and watch it with you, yes.
If they have your password and ID number, yes.
Otherwise, no.
February 2nd 2012 @ 9:45pm
Whites said | February 2nd 2012 @ 9:45pm | Report comment
Brett
As I understand it the system is basically a DVR in the cloud that only you can access with your login details. If say Bob, James and Fred seperately decide they want game A recorded the Optus system then makes 3 seperate copies for each person. Once they’ve set the game to record they can then watch it as soon as 2 minutes after the start time. This roughly the delay you now get with the Vodafone/3 cricket service.
There are still issues with the way some of the various formats record and replay that have yet to be determined.
February 3rd 2012 @ 4:36pm
Clayts said | February 3rd 2012 @ 4:36pm | Report comment
Brett,
If it is just Joe Bloe and no one else accessing the match on their mobile device via the Optus network, then I guess Telstra would not be too concerned. But if every Optus customer starts streaming football matches (even for their own consumption) then Telstra is going to be unhappy that what they thought was their market share, isn’t anymore.
That is my understanding
February 2nd 2012 @ 4:53pm
The_Wookie said | February 2nd 2012 @ 4:53pm | Report comment
the problem telstra have is that Optus are making 4 different versions of the same recording so you can watch it on any device, ostensibly for personal use citing new technolgies. Telstras argument is that no one needs 4 versions and that by automatically doing it Optus is breaching the copyright act. The AFL/NRL also believe it infringes on their right to sell broadcasts exclusive to mobile operators. The judge sees it differently.
The issues the Judge foresees is something to do with the means of distribution, and thats what Im not clear on at the moment.
February 2nd 2012 @ 5:11pm
The Cattery said | February 2nd 2012 @ 5:11pm | Report comment
Wookie
when you say 4 versions, do you mean to run on Apple, Android and Windows, etc? Are you saying Optus is intstantaneously converting the signal to run on on any of these devices, and thus Optus is making multiple copies of the recording to cover them all off?
February 2nd 2012 @ 5:53pm
The_Wookie said | February 2nd 2012 @ 5:53pm | Report comment
Thats exactly what it does.
February 2nd 2012 @ 7:52pm
Brett McKay said | February 2nd 2012 @ 7:52pm | Report comment
but Wookie, Optus aren’t actually broadcasting the FTA signal to be recorded and viewed across the different devices, are they?
February 2nd 2012 @ 8:57pm
The_Wookie said | February 2nd 2012 @ 8:57pm | Report comment
The problem lies in the automated recording of the event 4 times, and the way its streamed back. Theres no way a customer would be able to replicate that without the ISP doing it, and the ISP makes money off the play back of that recording.
February 3rd 2012 @ 4:09am
Redb said | February 3rd 2012 @ 4:09am | Report comment
Exactly Wookie, as soon as Optus spruik their offering it will become more apparent that they are defying the spirit of copyright laws. The loophole will likely be closed through amended legislation as the existing law is open to intepretation.
February 3rd 2012 @ 11:00pm
ItsCalledFootball said | February 3rd 2012 @ 11:00pm | Report comment
This only relates to FTA broadcasts of sport which any Tom, Dick or Harry can get for free anyway with a digital tuner and record it play it back as many times as he or she likes.
Only iIf he or she tries to sell a copy of the game or re-broadcast it, then it contravenes the rights.
AFL and NRL have no case really.
February 2nd 2012 @ 3:58pm
Ian Whitchurch said | February 2nd 2012 @ 3:58pm | Report comment
Lets assume Vlad is long-sighted and ruthless.
He eats the $154m, and offers a slightly delayed rebroadcast of the FTA games – and only the FTA games – to members of afl.com.au, which can be bought seperately or is packaged with an AFL membership. There is lots of value-add the AFL can do, especially if it has the AFLPA on side (as an example, google “Suns tv analyser youtube”, and imagine that for your club, only available to members of that club on afl.com.au).
Heck, he keeps channel 7 sweet by keeping their ads in his rebroadcast.
This lets him test run AFL TV.
Then, after the next media contract, all the pay-TV games go on AFL TV on subscription or pay-per-view, and the games on the anti-siphoning list go on FTA and the free part of afl.com.au.
Strategically, this hurts the NRL more than it hurts the AFL, as they need money more and are much less well prepared to run their own pay TV operation.
Vlad may not oppose this, or he may not oppose it very hard.
February 2nd 2012 @ 4:17pm
The Cattery said | February 2nd 2012 @ 4:17pm | Report comment
Phew – luckily he’s only long-sighted.
February 2nd 2012 @ 4:21pm
Australian Rules said | February 2nd 2012 @ 4:21pm | Report comment
Agreed that in the short term this is worse for the NRL than it is for the AFL.
The NRL would have hoped to boost their new deal with this sort of technology and partner (I didn’t realise above, that such a gulf separates the 2 current Telstra deals: $153M for AFL and just $4M for NRL).
As u say Ian, the NRL’s ability to get their own “tv” up and running would be a few years away yet.
February 2nd 2012 @ 4:55pm
The_Wookie said | February 2nd 2012 @ 4:55pm | Report comment
Its more contextual to compare the last AFL telstra deal with the current NRL one – $60 million to $4 million +$10 million for the league naming rights.
February 2nd 2012 @ 5:16pm
Boomshanka said | February 2nd 2012 @ 5:16pm | Report comment
It’s up and running now. Just need to unleash the game from the restrictive games of FOX and Channel Nine and we can watch what we want when we want.
http://www.livenrl.tv
With the anti siphoning laws about to fall over, it could be the best thing for Rugby League.
February 2nd 2012 @ 5:23pm
Ian Whitchurch said | February 2nd 2012 @ 5:23pm | Report comment
Boomshanka,
You keep saying the anti-siphoning laws are falling over, but you dont provide any proof.
Oh, and the Livenrl.tv link is a feed of the existing Nine/Foxel broadcast – the AFL is building the capability to do it without the involvement of any third party.
February 2nd 2012 @ 6:01pm
Boomshanka said | February 2nd 2012 @ 6:01pm | Report comment
As reported earlier this week in the oz;
http://www.theaustralian.com.au/media/opinion/siphoning-still-tied-up-in-red-tape/story-e6frg99o-1226256696171
“A new version of the law is needed not least because, some claim, at the moment the AFL’s $1.25 billion, five-year deal with the Seven Network, Foxtel and Telstra is invalid.
It won’t work under existing legislation unless the communications minister intervenes. ”
The communications minister doesn’t have the power to allow fox to be in direct pocession of listed sport as they currently have. Simple – some people are going to get upset.
February 3rd 2012 @ 6:13am
The_Wookie said | February 3rd 2012 @ 6:13am | Report comment
“some claim” is quite a nebulous term that more or less means someone disagrees with it. Doesnt make it a majority, and doesnt mean it is. Some people claim to have seen Elvis too.
February 3rd 2012 @ 7:04am
Ian Whitchurch said | February 3rd 2012 @ 7:04am | Report comment
As far as I can see, some people are getting shirty about Foxtel showing content that is also on FTA.
Given that the point of the Anti-Siphoning Legislation is so that people can watch major sporting events for free – and given the amount of government money that gets punched into grounds and so on, I think that is a fair tradeoff – Im writing this off as the Murdoch press being the people that they are.
February 3rd 2012 @ 4:49pm
Clayts said | February 3rd 2012 @ 4:49pm | Report comment
Yeah but Ian,
I have had Fox for 5 years, so what is wrong with me choosing to spend my hard earned watching Foxtel’s broadcast. I don’t really care whether the Govt has pumped money in to the ground TBH. I am paying taxes and paying for Fox..
What is wrong with FOX broadcasting at the same time as FTA. Anyone can still watch the FTA if they so choose. If they choose to watch FOX, it’s because they are paying for the priviledge to not be forced into watching 7′s coverage. Is this not what the free market is all about?
February 2nd 2012 @ 4:45pm
Jaceman said | February 2nd 2012 @ 4:45pm | Report comment
What is not mentioned is that Telstra got the Internet rights on the cheap last time as a contra for sponsoring the NRL premiership when no-one else would (for the price) because it was renegotiated around the time of a few NRL atrocities…
February 2nd 2012 @ 5:10pm
Boomshanka said | February 2nd 2012 @ 5:10pm | Report comment
I signed up for Optus TV last September and used it to watch the Vulcans, U20′s and the grand final presentation.
Still not as good as live TV, but it was a lot more stable than other IPTV options and gets around the Channel Nine blackout in Victoria (by offering a Sydney based address). Watchable even on a 40′ TV but not a long term solution.
Will ditch once the anti siphoning laws are either repealed (likely) or the so called use it or lose it clauses are in place.
Will be needing it to watch the first round grand final rematch instead of putting up with the 8+hour delay that fellow Melbourian’s have to put up with.
February 2nd 2012 @ 5:49pm
Jaceman said | February 2nd 2012 @ 5:49pm | Report comment
The anti-siphoning laws wont stop the NRL signing a bad contract. I dont think theres anything in the broadcast law about the NRL having to show NRL live in Melbourne if it doesnt want to. Optus has solved your problem and telstra has bought a pup – as Ian said Vlad may be looking to the future – but the AFL will have to accomodate Telstra in some way otherwise they may be at odds over a lot of matters. Perhaps this is Optus way of doing a deal with the AFL by the backdoor.
I am looking for O/s law in relation to the Optus decision but cant find any – its all about music piracy.
February 2nd 2012 @ 6:10pm
The_Wookie said | February 2nd 2012 @ 6:10pm | Report comment
I believe the TV Now setup is only for broadcasts in the state you live in, so this doesnt address that at all unless you buy a mobile in NSW or QLD and ship it to Melbourne.
February 2nd 2012 @ 6:24pm
Boomshanka said | February 2nd 2012 @ 6:24pm | Report comment
I bought my mobile through optus in melbourne, used the nrl’s business address and I can have Sydney tv on my phone. Only used it for the league so far.
Would be happy to discuss and negotiate with the ‘copyright’ holder if the opportunity arose.
February 2nd 2012 @ 10:15pm
Bondy said | February 2nd 2012 @ 10:15pm | Report comment
Boomshanka.
I’ve been wanting to ask you ( look i think im wrong ) is the N.R.L. televised into Tas at say 9.30 pm and maybe Perth at roughly the same time W.A. time .I checked the T.V. guides online last year and thought that to be the case,and nothing in Melbourne till what 11.30 or midnight .
Enjoyable read Davo .
February 4th 2012 @ 7:51am
Boomshanka said | February 4th 2012 @ 7:51am | Report comment
Bondy.
Outside of NSW or QLD, NRL Fans are stuck with the hoarding practices of Channel Nine which do not allow Fox or Telstra to show the game before the coverage has finished in Sydney, therefore the earliest one can watch NRL in Melbourne is about 11.30pm for the first Friday night, approx 1.30am for the second.
February 4th 2012 @ 8:27am
Bondy said | February 4th 2012 @ 8:27am | Report comment
Boomshanka.
Most people on this website treat / take sport very seriously,interesting one could suggest the Melbourne Storm have been the most successful team in the N.R.L for the past decade, though you can whatch it in Tassie at a earlier time and suprise suprise there’s no N.R.L. team in Tassie. Cunning .
February 4th 2012 @ 10:22am
Boomshanka said | February 4th 2012 @ 10:22am | Report comment
Bondy
I visit Tasmania a bit and have watched the four nations final at 9.30 (2hr delay), knowing that back home I’d have had to have waited until near midnight.
I understand Nines subsidiary the WIN Network have been known to show the NRL earlier than Nine outside of NSW and QLD, and this occurred last year with the final series being shown live in regional Victoria, Tassie and some parts of WA.
Are you saying that Hobart gets Friday night NRL at 9.30pm consistently? If so, it’s encouraging to hear.
February 4th 2012 @ 10:58am
Bondy said | February 4th 2012 @ 10:58am | Report comment
Boomshanka .
I cant conclusively prove that and i would be lying otherwise, i’ve just checked T.V. online guides in winter in the past with no pattern ” or data kept” .But i will this year.
So I cannot prove the Friday night N.R.L. match/matches are being screened at 9.30 on a regular basis in Tas .
February 2nd 2012 @ 5:27pm
Redb said | February 2nd 2012 @ 5:27pm | Report comment
This comes down to an assessment by the Govt of the spirit behind copyright laws. Optus use a loophole which may yet be closed.
The VCR analogy is simplistic as Optus will charge for this ability.
Anyway a lot water to go under the bridge, I’ll stick to my big screen HD TV thanks.
February 2nd 2012 @ 5:34pm
Ian Whitchurch said | February 2nd 2012 @ 5:34pm | Report comment
Redb,
No it doesnt. It comes down to the *courts* assessment of the copyright laws.
If the government doesnt like that, then they can get the parliament to pass new copyright laws.
One of the keys to why this is important,. by the way, is that as Boomshanka has stated above, you can use this to watch the footy on your big screen TV, despite the FTA broadcaster not wanting to show it to you at this exact time.
February 2nd 2012 @ 5:55pm
The_Wookie said | February 2nd 2012 @ 5:55pm | Report comment
Its more like Optus is supplying erparate VHS, Beta, DVD and Blu ray to enable you to watch it on any device you may have
February 2nd 2012 @ 5:56pm
p.Tah said | February 2nd 2012 @ 5:56pm | Report comment
If the government passes new copyright laws that prevents a provider such as Optus doing this but there is still a demand by consumers to watch recorded TV on mobile devices someone somewhere will make a device or a program that allows people to do this. In my view the ‘genie is out of the bottle’. The AFL with afl.com linked to membership has the best solution. You have to commend them they really do plan.
February 3rd 2012 @ 4:15am
Redb said | February 3rd 2012 @ 4:15am | Report comment
p. Tah
The genie is already out of the bottle in most areas but remains illegal, eg: downloading of movies, tv shows, music,etc. There will always be ways of obtaining content free but whilst they remain illegal a supplier cannot market a product.
So if the Govt passes copyright amendments, Optus will not be able to market their time shift in competition to Telstra’s AFL endorsed offering.
February 3rd 2012 @ 7:24am
p.Tah said | February 3rd 2012 @ 7:24am | Report comment
A media supplier such as Optus won’t, but another party who doesnt supply media will develop a DVR type unit that can send recorded TV to an Internet site. Another party with develop a website that can view content sent to it via a DVR. Both are separate entities, in isolation that are not breaking copyright laws if used for personal use only. Perhaps these technologies already exists I don’t know but what this high profile case has done has brought the concept to main stream media.
Reminds me a bit of the Apple versus Samsung legal case. apple gave the galaxy tab a huge leg up in promotion and now galaxy is becoming the fastest selling tablet and mobile phone.
February 3rd 2012 @ 10:53am
Redb said | February 3rd 2012 @ 10:53am | Report comment
Sure but they can’t market themselves as an AFL content provider. Common sense will prevail the Govt will close the loophole.
February 3rd 2012 @ 10:58am
Fussball ist unser leben said | February 3rd 2012 @ 10:58am | Report comment
Redb
I don’t think Optus is marketing itself as an AFL provider? And, what is the loophole that needs to be closed?
Do you ever record FTA TV programmes on a VCR or DVR? Do you feel this should not be allowed also?
February 3rd 2012 @ 4:53pm
Redb said | February 3rd 2012 @ 4:53pm | Report comment
Fussball,
I’ll ask you a question, do you believe content sent over the internet has value?
February 3rd 2012 @ 5:22pm
Fussball ist unser leben said | February 3rd 2012 @ 5:22pm | Report comment
Redb
It all depends on the content.
If content is available free to the public via traditional channels (radio, TV) then, in my opinion, the same content should be free to access via the internet.
So if I decide to listen to free radio or TV channels via the internet/PC rather than traditional means it shouldn’t make any difference – the content is free irrespective of the mode of transmission.
February 3rd 2012 @ 5:37pm
The Cattery said | February 3rd 2012 @ 5:37pm | Report comment
If it’s the FTA station which owns the rights sending the feed via the internet and getting the ad revenue from extra viewers, then you’d say: ok, fair enough.
But if someone else who doesn’t own the rights is making revenue by siphoning the feed, then you’d have to say there is something wrong with that.
February 3rd 2012 @ 5:37pm
Redb said | February 3rd 2012 @ 5:37pm | Report comment
Fussball,
This is the problem with the current legislation, it like you, thinks FTA is the same as the internet, when in reality it is much closer to Pay TV.
The copyright laws simply haven’t grasped the issue of protecting content over the internet. The internet is massively complex and a difficult to tame beast. Smart phones and tablet devices are so new these issues have not been considered.
Music royalties are continued to be paid to artists long after the song has been released as their rights are protected by copyright. A compilation or greatest hits CD 5 years later still has to pay royalties to the original artist, copyright demands they retain ownership of the product and deserve royalties.
The issue for the Govt and courts, telcos and surely it will come up, is that Optus has not offered any ‘consideration’ to the supplier their offering. Optus will receive a benefit though. Copyright needs to protect valuable content as live sport is valuable.
if their service was available after the game had finished then there would be less of an argument, live sport is the key and a 2 min time shift is close enough to live.
New tech has created a loophole that devalues an ‘artists’ product and their licensees who paid for it, the Govt should act to close it.
February 3rd 2012 @ 5:47pm
Fussball ist unser leben said | February 3rd 2012 @ 5:47pm | Report comment
The Cattery
Optus TV Now does not allow for LIVE transmission. It is only used for “time-shifting” – i.e. recording shows and watching them later. It is no different to using a VCR/DVR to record a program and then play it back.
The only differences are:
a) the recording device is now “in the cloud” and not in your house
b) playback is not via wires connected to your TV but via packets of data transmitted through cyberspace.
Also, it should be noted that whilst users with Apple iPads or iPhones can watch a recorded program “almost live” (within about 2 minutes of the commencement of the actual free to air broadcast), users with all other devices (PCs, Android & 3G devices) can only watch a recorded program after the broadcast had concluded.
February 3rd 2012 @ 5:55pm
Fussball ist unser leben said | February 3rd 2012 @ 5:55pm | Report comment
Redb
You seem to be assigning a 19th century mysticism to the 21st century internet that is unwarranted. The internet is simply a means of transmitting data.
There is no dispute that the content owners (AFL/NRL) own the copyright in broadcasts on FTA TV of games played in their competitions.
What the recent decision has determined is simply that, using the TV Now service provided by Optus does not infringe the content owners copyright.
February 3rd 2012 @ 5:56pm
The Cattery said | February 3rd 2012 @ 5:56pm | Report comment
No – I disagree that it is the same as taping and replaying. In that case you purchase equipment and undertake to do something in a generic sense for domestic consumption only – as long as you are not making any revenue from that activity – that’s a crucial point.
In the Optus case, they are acting in the manner of a broadcaster, publicising the fact that they can provide content for which they have paid no rights, and intending to earn revenue from that – and once you earn revenue from product owned by someone else – there must be a legal issue.
February 3rd 2012 @ 5:59pm
The Cattery said | February 3rd 2012 @ 5:59pm | Report comment
I note that the music industry was able to successfully shut down peer-to-peer music sharing platforms, which too tried to argue that it was no different to taping music. Once you move away from using privately owned equipment for private purposes, and have a mass means of distributing the product, in particular, with a capacity to earn revenue from that, then clearly the rights holder will want to question the validity of that.
February 3rd 2012 @ 6:03pm
Fussball ist unser leben said | February 3rd 2012 @ 6:03pm | Report comment
The Cattery
Welcome the world of “cloud technology”!
Your view is not without merit but, alas for you and TLS, for now, a Federal Court judge & I have the same view, which conflicts with your view.
Let’s see what happens when the full bench of the Federal Court meets to hear this matter. And, then, it will go to the High Court for the final decision … and, alas, even I have to bow to the omnipotence of the High Court of Australia.
February 3rd 2012 @ 6:29pm
Roarchild said | February 3rd 2012 @ 6:29pm | Report comment
The difference between the music sharing sites is they were providing access to material you didn’t “own”.
I don’t see the problem with me being able to watch what I am legally allowed to watch on TV on my much smaller portable TV (in this instance a mobile phone).
In some ways it’s like trying to ban people from watching black and white TV if they want to.
That said without owning the actual content just the system of delivery Optus seem out of bounds advertising the ability to watch AFL.
February 3rd 2012 @ 6:37pm
The Cattery said | February 3rd 2012 @ 6:37pm | Report comment
roarchild
but similar to the music sharing technology, Optus is providing you with the abiity to watch something coming from its cloud, something it doesn’t own as well – and it wants to generate revenue from that service.
February 3rd 2012 @ 6:52pm
Fussball ist unser leben said | February 3rd 2012 @ 6:52pm | Report comment
The Cattery
But that’s the core of the determination. According to Rarer J, Optus does NOT own the recorded event. Each individual, who accesses the TV Now service, has his own individual recording – in 4 formats – for each show that he/she chooses to record.
It’s not like Optus is making a recording of every FTA TV show & storing the data for customers to access via the internet, which is what FTA TV Channels currently do (e.g. ABC iView, 7 Plus, etc.).
Each customer makes a decision – before the broadcast commences – to record a FTA TV show – in the same way we do with VCR/DVR.
It’s also worth noting that the TV Now service can only record a program if the program has not yet commenced – you cannot start your recording once a program has commenced. So, you can’t use the TV Now service to “catch up” on missed shows that you forgot to watch and didn’t record.
February 3rd 2012 @ 7:03pm
The_Wookie said | February 3rd 2012 @ 7:03pm | Report comment
That stopped being true when the SYSTEM automatically made 4 different copies for 4 different devices. Im far from convinced that the judge is as right as you think he is. One copy for one device I can get, but FOUR. No way.
And Im in the opposite corner to Fussball on free stuff being free on the net. The internet has successfully given us an era of entitled free loaders who seem to believe that anarchy is ok, because well ITS THE INTERNET with its net neutrality, and anonymity all contributing to the downfall of established systems because its new tech and it that makes it all ok.
February 3rd 2012 @ 7:04pm
The Cattery said | February 3rd 2012 @ 7:04pm | Report comment
Yes – we know Optus doesn’t own it – that’s precisely the bit that’s contestable!
February 3rd 2012 @ 7:12pm
The Cattery said | February 3rd 2012 @ 7:12pm | Report comment
Wookie
that’s correct – the new technology changes nothing. Using music as an example again, just because technologies can make it easier to pirate – doesn’t actually mean it’s legal – the copyright law works pretty much the same way as it has always worked.
I can’t see how the “cloud” changes anything. If you want to send a digital recording to drop box to watch later – you can do that right now, and no one would be complaining about that.
The fact that Optus gives you a means of watching it virtually live, and plans to earn revenue from that service, using a product it has zero rights to, provides a clear enough distinction from using a personal means of recording and viewing later.
February 3rd 2012 @ 7:20pm
Fussball ist unser leben said | February 3rd 2012 @ 7:20pm | Report comment
The Wookie
Do you notice the irony calling yourself “The Wookie” and then bemoaning the anonymity provided by the internet?
What’s wrong with having a recording made in 4 different formats?
I’m sure that will be the standard feature for every DVR in the future if DVR manufacturers want their product to be used widely. No manufacturer will limit itself to only providing files for use on one type of mobile device.
February 3rd 2012 @ 8:02pm
The_Wookie said | February 3rd 2012 @ 8:02pm | Report comment
yes the irony never escaped me…even though im using my own image as my avatar.
February 3rd 2012 @ 11:39pm
Roarchild said | February 3rd 2012 @ 11:39pm | Report comment
The music sharing sites allowed you to connect and share with other people.
This is just whats on your own TV transferred to your phone via cloud.
More like I tunes transferring your own CD’s to your own MP player. The CD was only designed for use in a CD player but I am now using it without one.
Generic TV recording and transferring to cloud seems fine.
February 4th 2012 @ 9:24am
The Cattery said | February 4th 2012 @ 9:24am | Report comment
I think there are still some parallels with the peer-to-peer music sharing platforms.
Many argued at the time that it was no different to me giving you my CD to take a copy of, but instead I was letting you access my digital copies of music directly.
February 4th 2012 @ 3:38pm
Roarchild said | February 4th 2012 @ 3:38pm | Report comment
“Many argued at the time that it was no different to me giving you my CD to take a copy of, but instead I was letting you access my digital copies of music directly.”
If it is possible to gain access to what other people have recorded then that would be rife for abuse and I can understand Telstra’s position.
If it’s only what you chose to record then I think Australia is probably the only country in the world where they would expect consumers to agree to pay for a different version of free content.
While being able to check whats happening in the game is one part of the internet rights Telstra own; I would think a lot of the value to the consumer would come from the packaging and formatting as well as all the extras (like a Dream Team app).
Long term I don’t see much value in a straight stream of what is intended for big screen TV.
Telstra should get serious and make a mobile intended version broadcast of the game. Appropriate camera angles and distance, interactivity, replay options etc.
Would be a massive winner.
February 4th 2012 @ 11:40pm
Phelpsy said | February 4th 2012 @ 11:40pm | Report comment
Thing is, on your TV when you have a DVD-R – you are actually already have access to the game on your TV so as to tape it in the first place – therefore I see no problem with taping it and watching it later. Can you do the same if you have the an Optus phone – if you can watch it live on your phone and you are just taping it to wactch later on then I see no problem. If somhow, and I know nothing of how it is done, Optus tape the game at a central head quaters or somewhere, then stream it to their customers – well that surely couldn;t be allowed?
February 6th 2012 @ 6:31am
Boomshanka said | February 6th 2012 @ 6:31am | Report comment
Phelpsy,
That’s exactly how the OPTUS TV works. You have a PVR partition that you need to set up what to watch.
Just like a PVR at home, there is limited space, so it doesn’t make sense just to leave crap on there.
Like home, if you forget to set up the game / or another TV show then it cannot be applied retrospectively (worse – if you miss the start it will not tape the rest of the program).
You cannot share the stream and it is linked to your account.
The AFL (and NRL) are behaving like they own the internet here. They’ve sold the FTA rights and now trying to dictate how we watch it.
February 3rd 2012 @ 8:07pm
Titus said | February 3rd 2012 @ 8:07pm | Report comment
That could be any Wookie, though to be honest, they all look the same to me.
February 2nd 2012 @ 7:46pm
Redb said | February 2nd 2012 @ 7:46pm | Report comment
That’s what I said the Govt will assess the spirit if the law, essentially creating amendments if they beleive the spirit of the law is not enough.
February 2nd 2012 @ 8:08pm
Ian Whitchurch said | February 2nd 2012 @ 8:08pm | Report comment
Redb,
No, its a lot more complicated once you involve laws. First of all, the government has to decide on if it is a loophole, or the system working as intended – remember, this is *free to air* content. Then the government has to get its legislation through the lower house, which isnt guaranteed at the moment. Then the government has to get it through the upper house, which also isnt guaranteed at the moment.
February 3rd 2012 @ 3:27am
Redb said | February 3rd 2012 @ 3:27am | Report comment
Ian,
No. I’m talking about the actual copyright laws and the spirit behind them, not about the political process that will come later.
There needs to be an examination of copyright protection with new technologies like time shift apps on mobile devices & whether valuable content is being diluted. The Copyright Act is from 2006 I beleive thus it may not have envisionaged this type of technology.
IMO to protect valuable content, free time shift recording perhaps requires an amendment that allows the vision of time shift captured games to occur after the game has finished. 2 min delay is close to a ‘live’ broadcast.
February 3rd 2012 @ 7:06am
Ian Whitchurch said | February 3rd 2012 @ 7:06am | Report comment
RedB,
The judge said “Yes it did. Optus has just built a video recorder for TV that just happens to work on the Internet. The same fair use provisions apply”.
February 3rd 2012 @ 5:05pm
Clayts said | February 3rd 2012 @ 5:05pm | Report comment
Channel 10 used to broadcast “Live” all the time on a half hour delay
February 3rd 2012 @ 11:20am
Jaceman said | February 3rd 2012 @ 11:20am | Report comment
I think there will be non-partisan agreement to save the 2 biggest footy codes in the country. The broadcasters are shirty because their content over the air is regulated and the 2 minute delayed stuff over the Internet is unregulated but the Convergence review may alter this…
February 4th 2012 @ 8:09am
Boomshanka said | February 4th 2012 @ 8:09am | Report comment
The ‘Spirit’ of the Anti Siphoning Legislation is to ensure that “‘…events of national importance and cultural significance… be received by the public free of charge… This process should ensure, on equity grounds, that Australians continue to have free access to important events.”
It’s taken nearly 3 years since a review in 2009 to get to where we are today where sport is still hoarded through this mechanism.
The government don’t give a toss about “Spirit”. They make the laws and the courts provide an equitable way of ensuring compliance. Tonight’s NRL Indigenous All Stars game will be hoarded despite being an event of national importance.
For those outside of NSW or QLD the internet provides viable options. (through Optus TV and http://www.nrl.com/watch-the-all-stars-live-online/tabid/10874/newsid/65754/default.aspx )
February 4th 2012 @ 8:21am
Fussball ist unser leben said | February 4th 2012 @ 8:21am | Report comment
Boomshanka
In relation to the NRL match, the TV Now service provided by Optus will be of no benefit to people, who live outside NSW or Qld and want to watch the game “almost live”.
The facts are very clear:
“The user cannot use the TV Now service when in another capital city to record any broadcasts that are not made in his or her home address broadcast region. A user is only able to change his or her home address details once every two months.”
February 4th 2012 @ 8:33am
Ian Whitchurch said | February 4th 2012 @ 8:33am | Report comment
Fussball,
Boomshanka used an “alternate” address – one in a state where FTA showed the footy he wanted to watch, when he wanted to watch it.
I suspect now people learn about this, a lot of people will follow suit.
February 4th 2012 @ 10:34am
Boomshanka said | February 4th 2012 @ 10:34am | Report comment
There is nothing wrong with providing an alternate address.
The constitution of Australia provides protection such that consumers of services and products which are legal in one state are not illegal in another. There is nothing in Australian law that prevents me from using this service. As mentioned above, I use it solely for supply of service that I cannot get locally.
February 3rd 2012 @ 4:20am
Redb said | February 3rd 2012 @ 4:20am | Report comment
Ian,
It’s hardly the main issue what Boomshanka is suggesting, it is the exception, I can watch AFL live on FTA I do not need time shift to watch a program I can see on FTA.
The Govt will consider the main consumers of the AFL or NRL product in the relevant markets not the disgruntled expats.
February 3rd 2012 @ 5:46am
Boomshanka said | February 3rd 2012 @ 5:46am | Report comment
Redb, disgruntled expats vote.
February 3rd 2012 @ 10:54am
Redb said | February 3rd 2012 @ 10:54am | Report comment
They’ll be shaking in their boots I’m sure.
February 2nd 2012 @ 8:04pm
sheek said | February 2nd 2012 @ 8:04pm | Report comment
Thanks for your input & insight, guys.
After I scroll back & forwards about half a dozen times, I might begin to understand it all……….
February 2nd 2012 @ 8:14pm
Brett McKay said | February 2nd 2012 @ 8:14pm | Report comment
Sheek, when you do, can you explain it to me?!?
February 2nd 2012 @ 9:19pm
The Cattery said | February 2nd 2012 @ 9:19pm | Report comment
One thing is for sure – it’s not a problem for one sport (if it ends up being a problem), it affects all sports – all the major sports have hired the a lobbyist/PR bloke to represent them all – which makes Ian’s comment above about the AFL secretly rubbing their hands with a glee an intriguing one.
If it makes anyone feel better – I don’t really think anyone knows where any of this is leading – but as I watch the traditional press go out the back door with people becoming accustomed to getting news for free – I wonder whether this is the first step in sporting content, if not being free, becoming far less lucrative for the major sports.
February 2nd 2012 @ 9:38pm
Ian Whitchurch said | February 2nd 2012 @ 9:38pm | Report comment
Cattery,
I dont think the AFL is secretly rubbing it’s hands with glee ; I just think that they will be able to take advantage of the situation to accelerate their existing timetable to eliminate the Foxtel middleman.
February 3rd 2012 @ 4:30am
Redb said | February 3rd 2012 @ 4:30am | Report comment
I very much doubt the AFL is rubbing its hands with glee. Losing control of your content is a serious issue. The AFL and NRL will work together on this.
February 3rd 2012 @ 7:11am
Fussball ist unser leben said | February 3rd 2012 @ 7:11am | Report comment
The Cattery
This is only a problem for sporting events (or any shows) that are broadcast on FTA TV. It does not affect sports that are broadcast on PayTV.
Additionally, the only people, who are alarmed by this are:
* content providers (AFL, NRL)
* the owner of the now worthless license of FTA AFL & NRL broadcasts (TLS)
You will note that Ch 7 was not a party to the hearing before Rares J. Obviously, Ch 7 don’t care if people watch their program live on a TV set or they “time-shift” their viewing and record the program using a VCR, DVR or Optus TV Now system.
February 3rd 2012 @ 8:54am
The Cattery said | February 3rd 2012 @ 8:54am | Report comment
The other article on this subject says:
“The Coalition of Major Professional and Participation Sports (COMPPS), a lobby group which represents the AFL, NRL, ARU, Cricket Australia, FFA, Tennis Australia and Netball Australia, said changing legislation was the most likely solution. ”
In other words, all major sports have an interest in the outcome here because ultimately it boils down to the commercial value of your content and the degree to which you are able to exploit it.
One benefit is that it might bring about the early demise of the anti-siphoning rules because you now have a situation where the law is limiting the capacity of sporting bodies to extract full value from their content with no compensation from the taxpayer – I can’t see that situation lasting too long.
February 3rd 2012 @ 8:56am
Ian Whitchurch said | February 3rd 2012 @ 8:56am | Report comment
Fussball,
Telstra is also fundamentally someone who provides access to other peoples content.
They may – correctly – figure there is more money in selling people bigger internet packages to see FTA sport on, plus their own value-add in analysis, stats and so on.
February 2nd 2012 @ 9:47pm
Whites said | February 2nd 2012 @ 9:47pm | Report comment
With regards to how this impacts the AFL it all depends on the contract they just signed with Telstra. Telstra may be locked into this payment for the next 5 years no matter what the courts decide.
February 3rd 2012 @ 3:53am
Redb said | February 3rd 2012 @ 3:53am | Report comment
I’d say the AFL and Telstra remain allies at the moment and will fight the ruling, whether the appeal is successful is a nothing question as the Justice may be found to have correctly interpreted the existing law which is all he is bound to do.
If copyright law requires an amendment it won’t happen in the short term and the AFL will expect Telstra to honor their contract. It’s up to Telstra to stay abreast of new technologies & copyright protection. The AFL is a mere seller of a product which they bought.
February 3rd 2012 @ 4:05am
Redb said | February 3rd 2012 @ 4:05am | Report comment
“whether the appeal is successful is a nothing question”… thats meant to say “another question”.
February 3rd 2012 @ 7:18am
Fussball ist unser leben said | February 3rd 2012 @ 7:18am | Report comment
The news I’ve been hearing is that TLS will not be involved with any appeal. I think TLS realise this case is not worth fighting – they should have had better legal advice before they entered a contract to pay for a license that they didn’t require!
Additionally, from what I’m reading, legal experts are suggesting the existing contracts (worth $1.25b) that the AFL has with broadcasters (Ch 7, Foxtel, TLS) may be void, since the contracts were signed before the “Anti-siphon legislation” was passed by Parliament, so the parties have currently signed contracts for goods that they have no right to purchase.
If this is true, then lawyers are in for a bumper year.
February 3rd 2012 @ 8:04am
The_Wookie said | February 3rd 2012 @ 8:04am | Report comment
Theres nothing illegal about the 7 part, its the foxtel and Telstra sides that may be pearshaped. You are right this should be interesting.
February 3rd 2012 @ 10:57am
Redb said | February 3rd 2012 @ 10:57am | Report comment
Worst case : The AFL & Telstra reach a compromise on the deal.
Long way to go yet.
February 3rd 2012 @ 11:04am
Fussball ist unser leben said | February 3rd 2012 @ 11:04am | Report comment
Why would TLS want the deal? Why spend $153m for a license you don’t need?
Of course, it may be difficult for TLS to back out of the contract, unless the AFL has misrepresented the situation during negotiations or there is something else that makes the contract voidable.
From what I’ve read, TLS has simply been duped into buying a license that it doesn’t need, to broadcast 4 AFL matches that are broadcast on FTA TV each week.
February 3rd 2012 @ 7:09pm
piesman2011 said | February 3rd 2012 @ 7:09pm | Report comment
The only way that I could see Telstra getting out of this deal is if they coud convince a Judge that the AFL is not proving them with exclusive phone content. Im no legal expert and what I say is probabaly crap, but if I had to interpet this deal, I would say that Telstra still have an exclusive on the phone content. The reason for this is that the Optus custumers are either stealing the content from Testra (optus are providing them with a means to do so) or they are just watching recordings from TV.
It would be interesting to here from an expert on this.
February 3rd 2012 @ 7:13pm
Titus said | February 3rd 2012 @ 7:13pm | Report comment
No, Telstra could get out of it by proving that the AFL sold them something that was already sold to someone else i.e the general public.
February 14th 2012 @ 8:05am
Redb said | February 14th 2012 @ 8:05am | Report comment
Well you were wrong Fussball, Telstra have joined the AFL in appealing the decision as suggested.
February 14th 2012 @ 8:27am
The_Wookie said | February 14th 2012 @ 8:27am | Report comment
I dont think there was any doubt on my part that the AFL wouldnt have gone without Telstra, there’d be no point.
February 14th 2012 @ 8:32am
The Cattery said | February 14th 2012 @ 8:32am | Report comment
Very true. Already we have Optus complaining about all the exclusive content that Telstra has paid for, if nothing else, the ongoing appeals will serve to differentiate the additional content from Optus’, which is based around pinching ch 7′s four games, and nothing else – and there are doubts about whether it can even advertise that fact.
February 2nd 2012 @ 9:55pm
Fussball ist unser leben said | February 2nd 2012 @ 9:55pm | Report comment
Wow, interesting times and a big “thank you” to John Davidson for raising this very important issue on The Roar.
The judgement of Rares J can be found here:
http://www.austlii.edu.au/au/cases/cth/FCA/2012/34.html
and is certainly worth reading for those who have an interest in this issue, which is going to become critical as our lives become reliant on “cloud technology”.
Basically, Rares J decided:
* The user (i.e. the Optus customer) alone did the acts involved in recording the copyright works.
* s111(2) Copyright Act 1968 (which allows people to record shows for private viewing) applies and, hence, Optus customers did not infringe copyright in any of the broadcasts or films when they pressed the “record” button
* The user (Optus customer), by pressing the “play” button, transmitted the recording to his/her device. Optus is not responsible for the transmission since the customer controls when the recording is played
So, it looks like TLS has paid $153m to provide a service to its customers that its biggest competitor can provide without spending a dime!
Of course, it’s not the first – and, most likely, won’t the be the last – time TLS management have made a poor capital investment.
Note: all parties at the hearing had already agreed that leave to appeal to the Full Federal Court should be granted to any unsuccessful party, due to the significance of this issues being heard.