Did The Optus-NRL Legal Case Ruin The Cloud For Everyone?

Did The Optus-NRL Legal Case Ruin The Cloud For Everyone?

Last year’s court decision that ruled Optus’ TV Now catchup service effectively illegal clearly dealt a blow to any plans to develop similar cloud-based TV recording services. But did it also cast a broader shadow over the prospects for other cloud-based developers?

[credit provider=”getty” creator=”Cameron Spencer”]

In a presentation at Linux.conf.au today, Ben Power argued that the fact that the decision appeared to eliminate the principle of technology neutrality meant that it might give pause to anyone developing a cloud-related service, even if it wasn’t directly involved with broadcast media. “It may actually have wider implications for cloud computing,” he said. “It’s likely to have an impact on future innovation.”

While the original Federal Court decision agreed that users were entitled to use the service because of copyright law modifications introduced in 2006 that allowed individuals to record TV broadcasts for personal use, a subsequent appeal overturned that decision, arguing that Optus’ automation of that process and creation of multiple copies at different resolutions meant it was also an involved party. That decision isn’t likely to fill any other automated cloud service with legal confidence.

“Legislative change is the only way to deliver certainty,” Powell argued. “No one is going to develop stuff here if they think they’re going to get sued.”

The Australian Law Reform Commission (ALRC) is due to issue a report this year on potential legal amendments to eliminate uncertainty in this area. However, that report isn’t due until November 2013, a date which places it after the Federal election on 14 September. As such, any action on the issue before 2014 is extraordinarily unlikely.

The big lesson? Our legislative process often can’t keep pace with technological change, and innovators need to bear that in mind whenever they develop new services. “Until the Copyright Act reflects what people do in the ordinary course of business and content owners stop railing against change, infringement will continue to be a feature of Australia’s digital economy,” Powell said.

Lifehacker’s World Of Servers sees me travelling to conferences around Australia and around the globe in search of fresh insights into how server and infrastructure deployment is changing in the cloud era. This week, I’m in Canberra for Linux.conf.au, paying particular attention to the systems administration mini-conference and sessions on virtualisation and best practice.


  • The problem in the Optus case was that Optus was trying the legal equivalent of being a smart-alec. For all the elaborate flim-flam, Optus was recording the games and making them available to subscribers on demand for profit. It was not the same as users recording games on their own TVs and storing them in cloud storage for time-shifting purposes. The Optus case doesn’t draw a line through that at all.

    It’s certainly true that our legislative process struggles to keep up at times, but I don’t see in this case. I’m not sure what Ben Power’s qualifications are to speak about legal issues in IT because I’ve never heard of him. In my experience, FUD and misinformation about legal issues tends to have a more chilling effect than the actual law, just because most IT guys don’t want to spend money getting actual legal advice (or else they speak to lawyers who don’t really know IT but are happy to take money to give the most general and conservative possible advice).

    • I see his name is actually Ben Powell, but you’ve typo’d in the article. Point stands: I’ve never heard of him, and even after taking a look at his blog and his blog post on the subject I don’t know his qualifications to talk about the legal effect of the decision beyond the fact he has a Bachelor of Laws but as far as I can see is not and has not been a practicing lawyer.

      I’d hate to think people with actual creative ideas in the cloud space get frightened off because some guy made a speech at a Linux conference and his opinion got reported in the tech media as if it was engraved in stone. The tone of the article shouldn’t be so, well, certain and lacking any suggestion that there might be other views.

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