The decision means Optus has no further means of appeal, and the carrier said it would be closing its TV Now recording service as a consequence. Optus had argued that TV Now complied with section 111 of the Copyright Act, which allows individuals to record shows for their personal use, and that TV Now was nothing more than a technology that allowed consumers to do that.
The National Rugby League (NRL) and the Australian Football League (AFL) took Optus to court, claiming that the technology meant that Optus was breaching their copyright. Optus won the first case in February, but that decision was overturned by a full bench of the Federal Court in April. In the most recent appeal the court ruled that the Copyright Act was never intended to apply to commercial services like TV Now.
The AFL and the NRL, predictably, both welcomed the ruling. Optus was ordered to pay all costs. Fairfax media reported Optus’s vice-president of corporate and regulatory affairs, David Epstein, as saying that the debate about copyright in the Internet era will continue.
“This is a very important public policy issue that still needs to be resolved to give clarity to both consumers and the industry. People are increasingly wanting to watch TV when they want, where they want and on what they want. But the law as it stands imposes an arbitrary distinction between technologies.'"
The Optus TV Now service was a prime example of how copyright laws are having trouble keeping up with changes in technology. We now have the situation where it is legal in Australia for individuals to record content from TV to watch later, but illegal for them to pay for a service that allows them to that.