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The SMH has an interesting article about an imminent ruling concerning digital rights for footy video. It seems Optus is recording free-to-air sports broadcasts and then streaming the recordings to subscriber’s mobile phones, purportedly exercising the Copyright Act’s ‘timeshifting’ right on behalf of their customers. In reality, they’re directly undercutting the digital rights Telstra paid so handsomely for.

This is something I researched at law school, as back then it was by no means obvious how existing copyright legislation would apply in a convergent media world. I’m not sure how much has changed. A lot of what is currently assumed to be law, especially around free use, is actually just industry convention and untested in court. All it takes is for one player to adopt a more creative approach to digital rights and the whole house of cards could come crashing down.

I don’t think there’s any danger of that here – the approach Optus has taken seems too clever by half. It would have some interesting implications for the likes of ABC’s iView though, which could avoid extra payments to license broadcast content for the online catchup service under the guise of timeshifting.

UPDATE: It turns out Justice Rares in the Federal Court appreciates a cunning plan when he sees one, and has ruled in favour of Optus. With hundreds of millions at stake for sporting codes, an appeal is expected, although as I suggested in my orginal post, the judgement has a potential impact much wider than just sports content.

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