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The full Federal court will hear an appeal by Channel Nine against the finding in favour of IceTV. See this entry for details of the case. Judges Black, Lindgren and Sackville will hear the case. The hearing will be held over two days at the court in Queens Square, Sydney on the 25th and 26th of February.

While the outcome will be quite interesting in terms of copyright law as it applies to television schedules, it will have a particularly significant impact on IceTV as it is likely to dictate whether Nine will have to pay IceTV’s costs of defending the matter.

Furthermore, according to a quote by IceTV’s Chairman Colin O’Brien in “Smartoffice” magazine, IceTV intends to sue Nine for millions of dollars if Nine loses the appeal.

Peter Vogel’s brainchild IceTV made it to the Sydney Morning Herald’s “The Year that Was” list (10th December 2007).

“IceTV beats Channel Nine, August 9
David and Goliath stories have enthralled audiences since biblical times. So it was when minnow IceTV, which supplies an electronic program guide for free-to-air TV, was sued by Nine for breach of copyright. Nine’s claim of protecting its intellectual property was disingenuous – partly because producing, let alone scheduling, Australia’s Funniest Home Videos isn’t intellectual property, but mainly because the move was simply about stifling development in a digital world in which Australia’s free-to-air broadcasters have hopelessly lagged. IceTV won, though Nine is appealing.”

While I wouldn’t go so far as to dispute that Nine has intellectual property, it’s nice to be recognised along with industry icons like Joost and Facebook.

Fairlight’s XYNERGI Media Production Centre. 

Readers with an interest in popular music might recall that in the eighties an Australian company, Fairlight Instruments, developed the first commercial digital musical instrument capable of sampling sounds. (See “A little bit of History” below)

Fairlight is in the news again this month, having just released a digital audio workstation which continues the Fairlight tradition of “disruptive” innovations.

The new product is called Xynergi, and you can download a brochure here. To call it a digital audio workstation is an understatement, to say the least. It is, as Fairlight puts it, “The world’s first unified media production centre”.

Its key specs are:

• 230 Hi Resolution audio channels
• 8 bands of EQ on every channel
• 3 stages dynamics on every channel
• 12 auxiliary sends per channel
• 72 user definable mix busses
• Audio bridge to VST and Rewire
• Up to 220 physical I/Os per card
• Comprehensive monitor system
• Integrated Pyxis Track Video
• Less than 0.5ms processing latency

Xynergi utilisies two new technologies which are world firsts.

The most obvious innovation is the control surface which looks a bit like a QWERTY keyboard with some extra knobs and displays. But its simple look betrays an incredible chameleon-like ability to completely change its function and re-label its keys from moment to moment. Take a minute to view this short video.

Unlike some keyboards which use expensive and power-hungry LED matrix displays in each keycap, the Xynergi keyboard uses a clever optical system to project full-graphic images onto the keycaps.

Less obvious but even more impressive is the audio processing hardware at the heart of the Xynergi. Judging by the audio specs listed above, you’d expect to have a rack full of DSP chips and another rack of I/O. You’d expect power consumption of a kilowatt or more, and there’d be a row of noisy fans to cool it. And you’d be paying maybe $50,000 for it.

But the whole Xynergi kit comes in a box you can carry under one arm, and you get change from $25,000.

The secret? Fairlight’s new Crystal Core audio processor card. Here it is, in all its glory.

One tiny PCIe card with enough horsepower to deliver 230 channels of beyond-studio-quality audio processing. It plugs into a standard PC and consumes only 8 watts. No fans!

After an absence of about 20 years, I was delighted to be asked by Fairlight to help them with some market research and business planning early this year. I got to see the Crystal Core and Xynergi keyboard at prototype stage. It was hard to believe what I was seeing and hearing. I kept looking under the desk for the DSP rack..

Fairlight will be releasing the Xynergi at the AES convention in New York from Oct 5-8. I predict it will be the hit of the show.

After 8 months of deliberation, Justice Annabelle Bennett of the Federal Court of Australia has ruled in favour of IceTV in its dispute with Channel Nine.

I’m no longer employed by IceTV, so the following is my personal account only.

In short, Nine claimed that IceTV’s electronic program guide infringed Nine’s copyright in their schedule. The full judgment has now been published here.

This saga dates back to about 1988 when I was thinking about how to solve the biggest technical challenge of modern times – how to program a VCR to record the right program.

My idea was to bring up a TV guide on the TV screen and allow the user to click on the shows they want to record. This was basically what is now known as an EPG or electronic program guide. My invention would then set up the right time and channel settings on the VCR to record that particular show.

Sadly, I was a bit ahead of my time – the idea of clicking on an EPG seems obvious now but at that time the internet was virtually unknown.

Over the years I built several prototypes of this and each got fancier than the one before but I could not raise enough capital to get anything into large scale production.

About 10 years ago when digital TV was announced, I could see the opportunity to build the electronic programming guide into a digital set-top box which everyone would eventually buy as digital TV took over from analog. I had a strong belief that this was the better mousetrap I’d been looking for and thought “It’s time to piss or get off the pot”.

One of the problems was compiling the data for the EPG. Magazines like TV Week were available but of course you can’t just copy that into an electronic form; that would be a clear breach of copyright. I approached the companies that provided the information to publishers like TV week but they said they can’t sell me the information I wanted because the TV networks did not allow it.

So I realised the only way to obtain the EPG data would be to compile the information ourselves, from scratch, without copying anyone’s work.

So, in consultation with some of Australia’s top copyright lawyers, I designed a process that would create the EPG without breaching copyright. The basic steps were to watch TV for a few weeks and write down what’s on each channel every hour of the day. This was what the Judge referred to in her judgment as “the torture period”. That formed a database which was the starting point, and from there daily updates kept the EPG current. The descriptions of the shows are written from scratch by writers we employed for the purpose.

IceTV was founded in 2005 and started delivering the “IceGuide” EPG over the Internet to media centre computers and set-top-boxes.

The TV networks didn’t like the new kid on the block. In 2005 Channel 7 threatened to sue for copyright breach, but after investigating the process they backed off. But in 2006 Nine took IceTV to the Federal court, again claiming copyright breach. IceTV explained their process to the Court and after 8 months of deliberation the Judge ruled in IceTV’s favour.

This does not mean that Nine’s TV guide is not copyright. It does not open the floodgates for every man and his dog to copy TV guides or download an online TV guide into their media centre.

What it does mean is that the Court has now confirmed what I have always maintained – that Ice’s EPG is legal.

With that question mark now erased, I hope more companies will make IceTV’s EPG available through their products. For example Microsoft Vista comes with TV recording capability but no EPG. In the USA and other countries Microsoft include the EPG with Vista.

The good news is that that my dream of nearly 20 years has been vindicated. The bad news is that largely due to the legal costs of defending the case against Nine, I was laid off by IceTV last October. The really really bad news is that right now I’m also being sued by IceTV – more about that another time.

The judgement in theNine vs IceTV copyright case is being handed down on Thursday in the Federal Court of Australia (Queens Square Sydney). This is from the Federal Court wesbite:

File Number – NSD935/2006

Application – INTELLECTUAL PROPERTY

09/08/2007 09:30

BENNETT J

Judgment

Court Room 20C

STAY TUNED! 

On 30th Nov IceTv and Nine made their final submissions before Judge Annabelle Bennett in the Federal Court.

Note: neither Duncan Ross nor I work for IceTV any more, so these are purely my personal observations.
My summary of the main points follows:

Scope and definition of the copyright work

Nine argued that the copyright work (which they say IceTV copied) is the list of times and program titles for a single day.

IceTV contended that the work must be the whole guide, including program descriptions or synopses, and the minimum size of the work is one week, since this is how it’s supplied to HWW and that’s the basis on which Nine’s witnesses said they prepare the guide.

Starting point for IceGuide

Mitch Rillet, IceTV’s content manager, had previously given evidence that the starting point for IceTV’s guide was when he spent three weeks watching TV and noting down what was on each channel throughout the period.

Nine claimed that this is not true, and that Mitch actually copied the initial guide form TV Week or YourTV, so that every guide made since then is based on that illegally copied original.

IceTV maintained that this is not the case, that the starting guide was created without copying Nine’s.

Nine’s compilation and HWW’s compilation

Nine gave evidence that they supply their guide to HWW who aggregate it with about 100 channels of other guides and make certain ediorial changes. IceTV argued that Nine’s copyright work is lost in the aggregation process and if anything were copied by IceTV, which it is not, it would be copied from HWW’s compilation, not Nine’s. They argued that Nine’s compilation is never made public so it would not be possible to copy anything from it.

Nine replied that the addition of the other channels by HWW did not affect their copyright.

SUBSTANTIALITY

Nine claim that IceTV copied their guide wholesale. IceTV say they copied none of Nine’s guide, or if the act of correcting mistakes by reference to HWW’s aggregation were deemed to be copying, only an insigificant amount of the copyright work would thereby be copied.

Summary

Judge Bennett will now consider the evidence and make her ruling sometime in January.

Peter

In a previous life I was cofounder of Fairlight Instruments, who developed the first commercial digital music synthesisers or “samplers”.

This year being the 30th anniversary of the release of the “Fairlight”, one of our first and most devoted supporters, Peter Gabriel, had the idea of celebrating the occasion by auctioning a vintage Fairlight keyboard. Proceeds will go to the human rights campaign “Witness”, which he founded.

Why would anyone buy a 30-year old Fairlight keyboard? Because each key has been signed by a famous musician who has used a Fairlight, there is more detail here:
http://www.keyboardmag.com/story.asp?storycode=15085
As you will see from the list of celebrities , the winner of the auction will take home original autographs of a “who’s who” of the last 30 years of popular music.

You can see a home movie I made of me adding my signature to the keyboard before it left for the Sates (to be auctioned) here: http://www.vogelross.com.au/public/fairlight1.wmv

Peter

Parliament is currently debating amendments to the Copyright Act 1968 which would hopefully bring it into line with the realities of modern technology. I was particularly interested in the provisions regarding home recording of TV shows, format shifting and place shifting.

Recording broadcasts for replaying at more convenient time

There has always been a “personal use” exemption for TV recordings in S111 of the Copyright Act; however it was somewhat ambiguous on some points.

The proposed amendments attempt to clear this up by explicitly allowing you to make a recording of a TV broadcast:

(a) in domestic premises; and

(b) solely for private and domestic use by watching or listening to the material broadcast at a time more convenient than the time when the broadcast is made.

In these circumstances “the making of the film or recording does not infringe copyright in the broadcast or in any work or other subject-matter included in the broadcast”.

This legalises time shifting, but I note that recording for the purpose of place shifting (watching the show somewhere else, such as on the train) is not permitted.

Copying sound recording in different format for private use

My reading is that you can make only one copy of a recording and it cannot be into the same format. I can’t see a definition of “format”. I presume it means changing from wav to mp3 for example. It seems that you are not allowed to then copy that to your Ipod, for example.

You are also not allowed to make a copy of something recorded off a radio show streamed on the ‘net, even in a different format.

Copying cinematograph film in different format for private use

Seems to specifically allow only analogue videotape to digital copying. “This section applies if: (a) the owner of videotape embodying a cinematograph film in analogue form makes a copy (the main copy) of the film in electronic form for his or her private and domestic use instead of the videotape”

So you can’t copy a video recording from your PVR to your Ipod, for example.

This is my layman’s interpretation of the amendments; I’d welcome any further insight into the draft amendments (there are 219 pages of them).

Peter Vogel

The case which was originally set down for four days hearing has taken longer than anticipated. It ran for 5 days this week and all evidence has now been heard.

It appears that Nine are not disputing that the narrative and certain other elements of IceTV’s program guide is original and not copied from them, however they are claiming that the schedule of time and program names is copied from their listings. ABC television has been covering the case, transcripts and video available here:

Nine takes on IceTV over copyright breach
16/10/2006

and

Judge urges mediation in Nine, IceTV copyright case
17/10/2006

Final submissions by both sides are scheduled to be made on 30th November. Until then there’s not much more I can say.

Note: neither Duncan Ross nor I work for IceTV any more, so these are purely my personal observations.

Welcome to the Vogel Ross blog.

This is where Peter Vogel and Duncan Ross (late of IceTV Pty Ltd) will keep you updated on the world of New Media.

In coming weeks we will be posting our commentary on the lawsuit brought by the Nine Network who allege that IceTV breach its copyright by producing a program guide for their channel.

This will be a seminal case because it could determine the future availability of interactive TV guides to the Australian public.

Stay tuned!

Note: neither Duncan Ross nor I work for IceTV any more, so these are purely my personal observations.