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Cloud PVR litigation: The Optus case in Australia

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11/07/2014
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This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

The Service

Optus

Service Description

Optus launches "TV Now", a service giving it mobile customers access to digital TV guide and the ability to schedule programmes for recording to the Optus cloud. The recording could then be played back as many times as the user wanted within a 30 day period, upon which it would be deleted. Users could only watch programmes that they set to record.

The Case

Optus pre-emptively brought proceedings to determine the legality of the service and was initially successful, with the trial judge finding that it was not Optus that "made" the infringing copy but, rather, the user of the TV Now service, and that this activity fell within the private copying exception under Australian copyright law.

This decision was overturned on appeal. Drawing analogies with the Rokuraku II case in Japan, the court found that Optus' role in copying, storing and making available the programmes without permission from the content owners meant that the service infringed copyright. The judgment concluded that "it is not apparent to us why a person who designs and operates a wholly automated copying system ought…not be treated as a 'maker' of an infringing copy where the system itself is configured designedly so as to respond to a third party command to make that copy".

Status

Judgment in favour of the content owners.

For a complete overview of PVR litigation cases around the world, please see our Content meets the cloud report.

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