Place shifting of FTA content and exclusive rights in a mobile world

Pretty big news from down here in Australia, also an unexpected outbreak of common sense.

A mobile carrier, Telstra and the two dominant sporting codes have lost a case against a mobile carrier who offered a place shifting service for FTA television. The mobile carrier, Optus, offers the ability to record and play live FTA TV form a customers mobile phone. (We don't call them cell phones down here).

This did give the customers the ability to record and and play back live sport with a very short delay (around 2min). While this all sounds quite sane and normal, it got interesting when Telstra sued Optus, as they have an 'exclusive mobile streaming' deal for this premium content. Of course this premium content is also broadcast on FTA television.

via: Optus wins landmark TV rights case - ABC News

The judge cited "time-shifting provisions" in the Copyright Act that let people record shows and watch them later.

This was a case about play shifting free to air content, which is completely legal, not about exclusive rights to premium content on a mobile network. Optus put in place the technology and service to customers to play shift free to air television to their mobile phones. The fact it was used for content where the provider of the content had struct an ‘exclusive’ deal with another carrier is irrelevant.

It was cleaver marketing from the two sporting codes, the NRL and AFL to sell ‘exclusive’ mobile streaming rights to a single mobile carrier, and short sighted of the mobile carrier to purchase them.

What is really great is Optus have not being penalised for innovating and provide a service to customers, and consumers are not being penalised for fair use of copy righted content.

I think exclusivity of content on mobile networks is going to be a big thing in the next few years. Advancements in technology and changes in culture mean people are consuming television shows and movies on their phones and tablets. Locking in content to a single mobile carrier is a dangerous game, where only consumers lose out.

You could draw comparisons with premium content on cable TV networks, but the difference is, for example, HBO is available on both Dish and Time Warner Cable. The idea of a particular channel purchasing rights to content is also fine, as a TV can pick up more than one channel. But a mobile phone can't connect to two carriers.

Carriers are buying up exclusive streaming deals because they see it as adding value to their offering versus what other carries offer - Telecommunications being a strange business where all of the big players believe they provide the worst service and are always fearful of customers leaving.

For content that isn't simply time-shifted from FTA TV, mobile carriers could offer free or cheap streaming for their customers (the incentive to switch providers), but also sell access to customers on other networks, creating another revenue stream from customers that might not be able to switch mobile carriers.