Aereo and Optus TV Now – a comparison of the US Supreme Court and Australian Full Federal Court decisions

The Supreme Court of the United States in Aereo and the Full Court of the Federal Court of Australia in Optus TV Now have both considered the application of copyright laws to television streaming services. Both highly anticipated decisions have potential implications for new online technologies and cloud services. But how do the decisions compare and are the implications for cloud computing as far-reaching as some commentary has suggested?

This IP Whiteboard author has recently published an article in the Intellectual Property Law Bulletin on precisely these questions.   A copy of the full article, as published, can be accessed here.

Both courts considered whether a TV streaming service infringed copyright. Despite differing approaches, both the Supreme Court and the Full Federal Court reached similar conclusions —Aereo and Optus TV Now infringed copyright:

  • The Supreme Court found that the Aereo TV service, which allowed subscribers to stream free-to-air television broadcasts over the internet, infringed copyright by the “public performance” of the copyright works comprised in television programs (American Broadcasting Companies, Inc v Aereo Inc 573 US (2014)). Aereo’s service used thousands of tiny antennae and individualised copies and transmissions to allow its subscribers to stream free-to-air broadcasts to internet-connected devices such as personal computers or smart phones. The Supreme Court emphasised that it was the intention of the legislature to cover a service such as Aereo, downplaying the importance of the technology behind the service.
  • The Full Federal Court of Australia in National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd (2012) 201 FCR 147 also considered that a television streaming service infringed copyright. However, in contrast to the US Supreme Court in Aereo, the question before the Full Court in Australia was whether Optus had made a reproduction of the television broadcast, not whether the broadcast had been communicated to the public. The court found that Optus infringed copyright — it captured, copied, stored and made available for a reward a programme for later viewing by another. The Full Court examined the technical mechanisms by which the Optus service was provided. However, the nature and character of the Optus service was relevant to who was the “maker” of the copy and the time shifting exception.

While there has been some suggestion that both decisions have wider ramifications for the cloud computing industry, both the US Supreme Court and the Australian Full Federal Court were careful to confine their decisions to specific facts and circumstances of the service that was before them.

In the fast-paced world of Aereo and copyright, there have been some interesting developments since the article was written:

  • As set out in the article, following the Superme Court’s ruling, Aereo argued that it was a cable company and was entitled to a compulsory licence to carry broadcasts. In October 2014, District Judge Nathan refused Aereo’s request for a licence. (See our blog post on this decision here)
  • On November 21 2014, Aereo announced that it was shutting down and had filed for bankruptcy.
  • In February 2015, parts of Aereo were sold to Tivo and other buyers at a bankruptcy auction as part of a bankruptcy proceeding.