Over time, home video recording has become increasingly user friendly.
The VCR promised to be such a great device for catching up on your favourite TV but early VCRs were difficult to set to record ahead of time. In an attempt to make things easier manufacturers came up with a code — the G-Code — so you could set your VCR to the G-Code published in the TV Guide for that program and everything would go smoothly.
It was digital video transmission in Australia in 2001, and the taking up of devices like TiVo, that revolutionised digital video recording in Australia. The TiVo did everything in the one box with a comparatively simple handheld interface and, being a digital computer, it could automate everything — no more clunky G-Codes.
Computer savvy users who had TV cards were way ahead of the game even before digital TV arrived. Their computers had access to software that captured the analog signal and saved a digital file copy of the analog signal on their hard drive.
OptusNow — a new cloud computing service that operates as a personal video recorder — is the subject of ongoing trials and a recent appeal. At first instance it was adjudged to be part of the progress from the TV Card to the TiVo, according to the first instance judge, Justice Rares.
But following the full Federal Court appeal of NRL v Singtel Optus, Rares’ opinion has been overturned. Optus Singtel must now shut down OptusNow after the court took a very different view of how the complex technology is to be dealt with.
While Justice Rares saw the service as being analogous to a personal digital video recorder, the Full Court saw it as "so pervasive that, even though entirely automated, it cannot be disregarded when the ‘person’ who does the act of copying is to be identified". By which the Court is saying that the Optus system is involved in making many decisions about how the TV program is being recorded, where it can be stored, where and when and how it may be viewed and for how long — so much so that the subscriber is more a passive partner in the making of the copy than the sole instigator. The decision raises many implications for the currently emerging technologies in cloud computing.
Prior to 2007 s.111 of the Copyright Act exempted home taping of broadcasts from liability for copyright infringement in a limited way. But the section did not exempt liability for infringement of copyright in the music, the sound recordings, the movies etc contained in the broadcasts. It did not therefore effectively exempt private people in their homes from liability for the increasing prevalence of the VCR and later digital video recording devices.
As referred to by the Full Court, the Explanatory Memorandum to the 2006 Bill in discussing the background to the then proposed changes to s.111 says:
"Video cassette recorders have been used to time-shift analogue television broadcasts in Australian homes since the 1970’s. Today a range of new consumer devices (eg DVD recorders, Personal Video Recorders, and digital TV tuner cards for PCs) are being marketed to simplify and encourage the private copying of television broadcasts."
"Legal action has not been taken by copyright owners in Australia to stop such private copying. Nevertheless, such acts usually infringe copyright. Many ordinary Australians do not believe that … "time-shifting" a broadcast for personal use should be legally wrong with a risk of civil legal action, however unlikely. Failure to recognise such common practices diminishes respect for copyright and undermines the credibility of the Act."
"The failure to recognise the reality of private copying is also unsatisfactory for industries investing in the delivery of digital devices and services. Eg, the supply of personal recording devices by broadcasters of subscription television services is proving to be important for the development of digital television. The availability of personal recording devices is also likely to be important for digital radio."
However, the full Federal Court’s opinion in NRL v Singtel Optus differs from Rares in how it adopts the Explanatory Memorandum. While Rares seees it as a licence to adapt the law to new technologies the Full Court says:
"There is nothing in the language, or the provenance, of s 111 to suggest that it was intended to cover commercial copying on behalf of individuals. Moreover, the natural meaning of the section is that the person who makes the copy is the person whose purpose is to use it as prescribed by s 111(1). Optus may well be said to have copied programmes so that others can use the recorded programme for the purpose envisaged by s 111. Optus, though, makes no use itself of the copies as it frankly concedes. It merely stores them for 30 days. And its purpose in providing its service — and, hence in making copies of programmes for subscribers — is to derive such market advantage in the digital TV industry as its commercial exploitation can provide. Optus cannot invoke the s 111 exception."
The Full Court took issue with Rares’ approach to the word "make" when referring to creating copies. They said his view was entirely artificial, as there was no copy made on the subscriber’s mobile — only a stream.
On my reading of Rares’ decision I took him to be saying that a) the article or thing was the copy made on the Optus servers that was being streamed and/or b) that the stream as captured in the random access memory (RAM) of the mobile was the copy being made and that the pressing of "record" was simply the act of bringing those copies into existence to enable the stream to be sent.
The Full Court found that the design of the system made Optus the "main performer" in making the copy. Optus’ role was "so pervasive" that it could not be excluded as a maker of the copy.
"As the recording could only occur as and when the broadcast occurred of the programme sought but that programme itself had to be notified to Optus in advance, Optus established the wholly automated system, … which it so configured that the required recording did occur.
"If that part of the system embodied the steps taken by Optus to ensure that the required programme was recorded at the right time for the subscriber who required it, then the selection and notified confirmation by the subscriber of the programme required to be recorded could be said to be merely the necessary pre-condition to be satisfied to activate Optus’ obligation to perform its service.
"If this be correct, then Optus can properly be identified as the maker of the copies of the recording. As the AFL has put it, Optus’ data centre carries out the user’s instruction to record a programme; it records that programme. In other words, if analogies are helpful in this particular setting (which we doubt), Optus is to be analogised with a commercial photocopier which copies copyright material provided to it for copying by it."
But, taking up the Rares’ personal video recorder analogy, couldn’t the same be said of the electronic circuitry within a PVR? This reasoning seems to re-open the whole home taping argument that was supposedly settled some time ago in favour of the electronics companies — the VCR and the cassette recorder were not the infringer, the person pressing record was. From Rares’ argument the only difference between the PVR and Optus’ service is that Optus’ service uses software over a network instead of circuitry in a box under your TV.
The analogy to a commercial copier seems a stretch to me as the Optus system was designed so that only one copy is made for the given subscriber not multiple copies.
However, as the Full Court points out, Optus’ system does only allow streaming, and only for 30 days before the files are deleted. To me that is the critical failure of Rares’ PVR analogy. If you do not control the file in the same way that you control a recording made by a PVR then it is difficult to argue that Optus is not actively involving itself in the making of that recording.
But what if Optus modified its system whereby the file was downloaded to a subscribers’ Dropbox, iCloud, or similar cloud folder which automatically copied the file to the subscriber’s synchronised devices and the Optus server copy was deleted automatically once this was done?
Does that make Dropbox or the subscriber liable, or both? What if the same cloud computing home video recording system was provided by a company that was not a mobile carrier but simply a cloud computing system provider?
The Full Court decision will not be the last word on this matter given Optus’ announcement today that they will appeal. Cloud computing has put this technology in the hands of ordinary people and Australians have a reputation for being early and avid adopters of the latest technology.
Donate To New Matilda
New Matilda is a small, independent media outlet. We survive through reader contributions, and never losing a lawsuit. If you got something from this article, giving something back helps us to continue speaking truth to power. Every little bit counts.