Optus appeal denied by the High Court

On 26/10/2012 by Ron
(originally posted on 

The High Court has refused to grant Optus leave to appeal the ban of its online time-shifting service, TV Now.

A High Court Justice said there were insufficient grounds for an appeal to be granted, and that such an appeal in any case was unlikely to be successful.

In April, the full bench of the Federal Court overturned a previous ruling, and found that the Optus catch-up TV service was in breach of copyright laws.  Legal action was brought against Optus by a consortium which included the AFL, the NRL and Telstra.

In the landmark ruling, the Federal court said that Optus was the maker of recordings, and that meant the company was in contravention of copyright laws.

Optus’s Vice President of, Corporate and Regulatory affairs, Mr David Epstein, said in response to the decision, that the telco would now pursue the matter through a review of copyright laws by the Australian Law Reform Commission.  Mr Epstein said, “Online storage is here and with us now so we think it’s time to confront the realities of that. We can’t shut ourselves off from the world.”

Intellectual Property expert from the Monash University’s Law Faculty, Dr Rebecca Giblin, criticized the Federal Court’s decision, which she said “is so broad it even makes TiVo illegal”.

Dr Giblin says “the decision has significant ramifications for more traditional time-shifting technologies, and, if not overturned, might decimate the value of the nascent Australian time-shifting right and strand consumers in a technological dark age.”

The AFL has welcomed the decision, and a Telstra spokesman said it gives sports bodies and content owners the ability to receive a fair return for their property.

More reading:

Optus loses bid to appeal TV Now decision (SMH)
Stranded in the Technological Dark Ages: Implications of the Full Federal Court’s Decision in NRL v. Optus (Dr Rebecca Giblin, Monash University)

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