Sport needs to think outside the box

There is much misinformation and sloppy reporting of the recent Australian Federal Court ruling in favour of Optus TV Now.

The decision, consistent with similar copyright rulings in Singapore and the US, essentially allows Optus to record live sport (or any program for that matter), store that in a ‘cloud’ and make it available for streaming to compatible devices, albeit with a 2-minute delay.

Respected sports journalists and commentators like Roy Masters and Richard Willingham (both Fairfax) misrepresent the technology taking place in their reporting this week. They say Optus is broadcasting. Optus is not.

Optus is merely ‘recording’ and ‘storing’ a program, and it’s the phone owner who actively downloads for personal viewing. And that’s a big difference, as Stilgherrian rightly and succinctly points out, coincidentally via the same media outlet as the other two reporters mentioned.

Optus argued (and Justice Rares agreed) that the service was a form of legal time-shifting, as permitted under section 111 of the Copyright Act.

Justice Rares, according to Stilgherrian, quite rightly examined the specifics of the Optus technology but focused on the human intent and actions. Individuals were in control, pressing the virtual record button, not Optus.

Sure, they were using Optus’s VCR-in-the-cloud, not their old Betamax. Their recording was stored in an Optus data centre, not on the shelf below the telly. The playback was almost immediate, streamed digitally to a device of their choosing. But the recording was still made ”solely for private and domestic use”, as the law reads, and that’s all that matters.

The issue of course is one of revenue and online licensing rights. The incumbent broadcaster, Telstra, paid a premium to various football codes for exclusive rights to broadcast games live over the Internet. The aftermath of Justice Rares ruling substantially undermines that exclusivity.

Naturally, there will be appeals. The codes complain that if the ruling stands, reduced funding from future rights deals will impact negatively on their junior development initiatives as well as grants to football clubs.

Certainly, there is much more to play out in this saga, not least of which is the reality check for staid old free-to-air broadcasters in this country and how they engage savvy online users in the 21st century.

And for a legal perspective, check out this articulate commentary from Kimberlee Weatherall, associate professor in Sydney University’s Faculty of Law, on Crikey.com. au   In relation to the time-shifting exception part of the ruling, she explains that the judge had to decide whether consumers were acting only for “private and domestic purposes”, and to watch the broadcast “at a more convenient time”. Justice Rares ruled that what was happening on Optus TV Now did fit this exception, even where, on Apple devices, they could watch the recording on a two-minute delay.

She then posits a few ways sports chiefs might seek to overturn that interpretation.

They could go the whole hog and demand that the exception simply not apply to cloud-based services. That would mean consumers could record TV to watch later — but only on their own digital video recorder in their home. Or they could demand a carve-out for live sports (so no recording the football). Or they could demand that “a more convenient time” mean no earlier than the completion of the original broadcast — getting rid of the streaming on two-minute delay and protecting “live” sports but preserving consumers’ ability to record football.

Of more concern to Weatherall, is the possibility that intense lobbying by football chiefs convinces the government to amend the law. In this scenario, we all lose, she says:

This is because of the message that an amendment will send to anyone who wants to offer innovative services to consumers in the digital environment. In this case, Optus took a risk, invested in a new service for its customers, entirely within the law. It acted on the basis that the government had given consumers certain rights to time shift in 2006. If the government turns around now, in panicked response to the sports chiefs’ lobbying, and retracts rights it gave so recently, what incentive does anyone else have to take a risk in the future? So much for Australia’s exciting new digital economy.

Read Kimberlee’s full commentary at Crikey.com.au.