The legal battle between Optus, Telstra, and the two major football codes over the Optus TV Now recording service may end up in the High Court.
Last month the Full Bench of the Federal Court overturned the initial verdict in February which ruled Optus did not infringe copyright with Optus TV Now.
The service allowed customers to record free-to-air television content and store them in the Cloud for later viewing. The NRL and AFL claimed Optus TV Now infringes the copyright of their sporting content and puts certain broadcast exclusivity deals in jeopardy. The AFL signed a multimillion deal with Telstra to broadcast games to the telco's mobile customer base. Telstra later joined forces with the two football codes in the legal stoush.
Optus has since pulled Optus TV Now as a result of the new Court decision.
At the company's fourth quarter financial results briefing, Optus CEO, Paul O’Sullivan, confirmed the telco will seek leave to appeal the judgement to the High Court of Australia.
The High Court will be the last line of appeal.
“We will continue to fight for the right of Australians to not have to pay extra for content that has already been paid for by free-to-air TV and by its advertisers simply because of where they choose to watch it and where they record it for themselves,” he said.
Optus considered the TV Now service to be no different than recording live TV with a VCR.
While the High Court has the final say on whether it wants to hear the case, O’Sullivan is “highly confident” the appeal will be taken on-board since it has broader ramifications for all Cloud storage solutions.
“It’s such a fundamental issue because we’re dealing with new technology and it’s an area which the law is having to evolve and the Courts are having to interpret that,” he said. “We believe it’s an issue of national significance and of importance to Courts and therefore we are highly confident it should get taken up for appeal.”
Ovum research director and telco analyst, David Kennedy, considered the new judgement in favour of the sporting codes and Telstra to be destructive to the growing Cloud industry.
“If Cloud is going to be treated differently from the local infrastructure, well, that kind of blows the whole Cloud business case out of the water,” he told ARN. “Or at the very least it complicates the whole process of businesses transitioning to Cloud provisioning of services.”
Read more about the Optus TV Now Court case in the upcoming edition of ARN Magazine
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