Optus successfully defended cross-claims for copyright infringement brought by the NRL, AFL and Telstra in relation to Optus' "cloud-based PVR" service, known as Optus TV Now.
Optus TV Now allows its users to record free to air television programs and play those programs back on their PC or mobile. The recordings are stored for no more than 30 days on Optus' "cloud" and streamed by the user to their device on demand.
The NRL and AFL claimed that the recording by Optus TV Now users infringed their copyright in NRL and AFL matches broadcast on free to air television. Telstra claimed that its exclusive mobile and internet rights to the matches were infringed.
Justice Steven Rares of the Federal Court in Sydney handed down his judgment in Singtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2)  FCA 34 on Wednesday
1 February 2012.
His Honour found that the users, and not Optus, made the recordings and those users were entitled to rely on section 111 of the Copyright Act, meaning the recording did not infringe copyright in the broadcasts. Section 111 provides that a making of a recording of a free to air broadcast by a person for private and domestic use for viewing the recording at a more convenient time does not infringe copyright in the broadcast. His Honour also found that viewing of the recording by a user was not a communication to the public.
The NRL, AFL and Telstra have indicated that they intend to appeal to the Full Federal Court.
Baker & McKenzie acted for Optus in this matter. Sydney Partners Andrew Stewart and Paul Forbes led the Baker & McKenzie team, supported by Associate Ryan Grant.