At 10:15am tomorrow morning, Justice Bennett of the Federal Court of Australia will begin hearing Nine Network Australia Pty Ltd v Ice TV Pty Ltd. The basic facts are these: Ice TV compiles a TY program guide that subscribers can use to record TV shows. (Once a program has been recorded, subscribers are able to fast forward ads in 30 second blocks.) The Nine Network believes that Ice TV has breached its copyright by creating a TV program guide that looks like its own. Accordingly, Nine has sued Ice TV for copyright infringement and is seeking a permanent injunction and unspecified damages.
One issue that will no doubt be relevant in the trial is the factual determination of whether Ice TV actually uses any of Nine's program guide data. This important factual issue seems to be against Nine. Although I am not an Ice TV subscriber, it is my understanding that the program guide data used by Ice TV is written and compiled by them. While the program start and end times are set by Nine, they are easily and freely available to the public and Ice TV simply takes those times, writes their own program descriptions and then creates their own compilation of program times across all networks. This seems to be supported by the copyright note that Ice TV has on their webpage:
CopyrightIceTV's electronic program guide (EPG) is an original work created by IceTV's staff. Some programs are available elsewhere that gather EPG data from various sources such as websites. IceTV does not recommend use of such programs as their use is likely to infringe other parties' copyright. Such programs may also be unreliable, especially if the owners of the data take technical or legal steps to prevent their work being copied. IceTV's EPG is its own, original work and IceTV owns the copyright. You may not copy or distribute it in any way except for the personal use for which you obtain license when subscribing to the service.
Accordingly, I think Nine is going to have difficulty establishing that Ice TV is infringing any work in which copyright subsists and Nine is the owner. This conclusion seems to be supported by a report in the Sydney Morning Herald that Ice TV has received three separate legal opinions that their program guide did not breach copright:
IceTV chief executive Duncan Ross said his company had received three legal opinions that its program guide did not breach copyright. One of those opinions was given to IceTV's founder in 1999 by Gilbert & Tobin, the law firm that is now representing Nine, he said.
That advice has been confirmed by two other legal firms, Mallesons and Simpsons Solicitors. Mr Ross also said Nine had been invited to come in and review the way IceTV created its guide but the network refused, opting to sue instead.
Read more here. Apparently Seven and Ten did take Ice TV up on a similar invitation to come in and review the way Ice TV created its guide, and have subsequently not sued Ice TV for copyright infringement.
In addition to the determination of the factual issue, the court will most likely review the law relating to compilations and databases. A compilation of information will attract copyright provided that the amount of skill, labour or judgment required in making the compilation is sufficient by looking at the compilation as a whole (see Ladbroke (Football) Ltd v William Hill (Football) Ltd  1 WLR 273). Accordingly, copyright may subsist in the compilation put together by Ice TV. This seems to be supported by Desktop Marketing Systems Pty Ltd v Telstra Corp Ltd (2002) 192 ALR 433.
In that case, Telstra published the Yellow Pages and the White Pages, while Desktop Marketing produced and sold phone directories in CD-ROMs of varying levels of sophistication with white and yellow pages listings, which could be searched in different ways whether by name, address, postcode, industry and the like. The data used to produce the CD-ROMS was taken from Telstra’s phone books and rekeyed by a team of workers in the Philippines. Desktop Marketing also used Telstra’s headings, though it did add its own software to do the searching. Although the court held that copyright subsisted in Telstra’s White Pages and Yellow Pages directories, and that this copyright had been infringed, the court noted that it was open to Desktop Marketing to obtain all the facts contained in the Telstra directories by its own independent inquiry, and produce its own compilation of the results. The court reasoned that if there had been no copying of Telstra’s product by Desktop Marketing, there would not have been any copyright infringement. (See Lindgren J at 472-478 and Sackville J at 539.)
Accordingly, if Ice TV can lead evidence that they have not copied Nine's program guide data, then it will be a very difficult case for Nine to win. Given this, a cynic might suggest that there is something else behind this law suit, as the Sydney Morning Herald speculates:
... perhaps the bigger gripe that Nine and the other commercial free-to-air networks have is that IceTV's technology allows users to dodge the ads.
When Channel Nine's Eddie McGyuire decided to take on Ice TV he knew exactly what he was doing. He was trying to destroy the fledgling electronic program guide business by commencing legal action to prevent Ice TV from producing an EPG Guide for Australian consumers. But the move has backfired.
This is despite the fact that TV stations all over the world are partnering with EPG producers. But the move has backfired. As Jessica Rowe's ratings are soaring after he alledgedly "boned" her with a plan to dump her from the morning TV show viewers have flocked to see what all the fuss is about and Eddie McGuire's antics have also boosted the fortunes of Ice TV.
The drama for IceTV unfolded when the Company announced its intention to list on the ASX, Nine started court proceedings against them, alleging copyright breach. Intending investors lost confidence, IceTV was forced to cancel its float and refund cheques to investors.
However Eddie's aggressive play included a surprise lifeline. The publicity surrounding Nine Networks' attempts to shut down IceTV has aroused interest from some major media companies curious to know why IceTV has attracted Nine's attention.
The controversy and resulting public support also resulted in record sales for IceTV. Subscriber sign-ups for June increased 200% over May.
IceTV's CEO Duncan Ross said " We are delighted with this turn of events. "We nearly became another casualty of Nine's ‘sue now, think later' business ethics. It's no secret that scuttling our float has cost us a lot" he said. "But being sued by the Packer empire, plus the recent boom in sales looks like being a winning formula for a healthy investment or lucrative acquisition from the big end of town."
Read more here.
It will be interesting to see how this case plays out before Justice Bennett ...