Yesterday’s news that the courts are allowing Optus to continue offering their TV Now service is interesting in how it exposed the narrow view of the AFL, NRL, and Telstra.

The TV Now service offers subscribed customers the ability to time-shift television programs, storing the content on Optus’ servers, to be watched via their mobile devices. Federal Court Justice Steven Rares found: “that such a recording or film was made by the user to watch it at a time he or she considered to be more convenient than when the live broadcast occurred, even if only by minutes”. Ultimately, Optus have been protected by the same laws that allow home users to use their home video recorders.

With everyday people now living more upwardly mobile lives with access to their home entertainment no longer limited by the geographical confines of their homes, it’s only natural that people are interested in accessing their recorded content on the go. As long as Optus aren’t making people’s recordings available to others and are in no way actually broadcasting the video recordings, the same principles of a VCR recording apply.

It’s understandable that the AFL, NRL, and Telstra want to protect their investment as much as possible and control the recording of their sporting events. When the VCR first launched, Universal and Disney similarly sought to prevent access to the devices. Their actions in bringing about the injunction against the TV Now service have simply highlighted the opportunities for consumers to circumvent the official stream by way of Telstra and instead use TV Now.  It’s worth noting that the advertising for TVNow doesn’t even suggest making recordings of sporting events and it’s likely that very few consumers would have considered using TV Now for streaming live sports on the go (albeit 2 minutes later). Using TV Now for streaming sports coverage is now synonymous with the TV Now brand.

The Optus TV Now Website Banner Ad

Optus are not the first to launch cloud-based TV recording in Australia. MyTVR launched in April of 2010 and provides web and mobile streaming of cloud-based TV recordings in a similar manner to what Optus are providing. At the time of the launch of that service, Dr Nic Suzor (a researcher in intellectual property and technology law) broke down the legality of the service, which you can read HERE.

Was it short-sighted for Telstra to spend $153 million on the streaming rights to the football when the potential for a service like TV Now is out there? Perhaps. But, it’s also worth considering the benefits that Telstra’s service has over a DVR service like TV Now. The biggest benefit being that the event is actually live. Watching a recorded live event removes the immediacy that makes sport such a thrill to watch. Even a 2 minute delay is enough to take some of the thrill out of it. Don’t underestimate the lengths a sports fan will go to in order to watch their sports live.

Last night, at a panel discussion on copyright and the proposed SOPA laws in the US, Dr Sean Rintel (a communication technology researcher) offered an analogy regarding copyright and the fashion industry. He pointed out that fashion designers cannot copyright a clothing design and that copying is rife throughout the industry. Yet, the industry still turns over a considerable amount of money. What gets people spending money is the clothing label. In effect, clothing labels serve as a sense of curation – the label is offering its name to provide a sense of worth to a specific design.

Perhaps digital media companies need to be doing the same. Yes, Optus may be able to also provide access to sporting events that are also carried on TV. But, where Telstra can shine is in bringing what only they can to the customer. They can deliver Telstra. The Telstra brand in this instance can deliver the sporting match live, free of the Ch7 advertising (and watermark), and deliver the video in high definition. Telstra need to fashion an experience that puts a valuable stamp on the broadcast. If sports fans come to associate the Telstra brand with a high quality viewing experience, they’ll be able to take ownership of the space. The value of the Telstra label can come to be almost more important than the value of the sport itself.

The technology exists for viewers to replicate a live stream of a sports telecast. Laws are in place to protect our rights as consumers to do this. Spending $153 million on the streaming access is certainly too high a cost with this consideration, but that doesn’t diminish the fact that there is considerable value in having the exclusive streaming rights to sporting events. The trick is in finding just what that value proposition is for the customer.