5.25 As suggested above, the question of whether a use is fair can sometimes be avoided altogether by arguing that the material was not in fact used by the third party at all—that it was not the third party, but only the end-user, who used the rights. The threshold question will often be: who made the copy? In other cases, the question might be whether the material was communicated to the public.
5.26 The question of third parties facilitating private and domestic uses has most recently been discussed in Australia in the context of the Optus TV Now service, and the Federal Court cases it prompted. The service enabled subscribers:
to have free to air television programmes recorded as and when broadcast and then played back at the time (or times) of the subscriber’s choosing on the subscriber’s compatible Optus mobile device or personal computer. The system which permits such ‘time-shifting’ of programme viewing requires the copying and storing of each television broadcast recorded for a subscriber, hence the allegations of copyright infringement in this matter.
5.27 The Optus TV Now technology was described in the judgment. Essentially, copies of broadcasts were made, stored, and later transmitted from an Optus data centre, on instruction from Optus subscribers using electronic program guides.
5.28 Optus argued before the Federal Court that it did not copy these broadcasts, its customers did. Optus emphasised that ‘the person who made the copy was the person who did the act of making, eg by selecting the material to be copied and by initiating the other acts to create the copy. Optus merely provided the automated service by which the recording could be made’.
5.29 The Full Federal Court disagreed, and concluded that
each cinematograph film and sound recording of the broadcasts and copies of the films in the Agreed Facts which was brought into existence after a subscriber had clicked the ‘record’ button on that subscriber’s Optus compatible device, was not made by the subscriber alone. It was made either by Optus alone or by Optus and the subscriber.
5.30 Related questions concerning whether a service communicates works to the public have also been raised recently in the United States, perhaps most importantly in the 2008 Supreme Court case, Cartoon Network LP v CSC Holdings. In this case, a cable television company, Cablevision, offered a remote personal video recorder service. It stored copies of television programs in digital lockers dedicated to each of its customers, and would later transmit those copies to its customers, when the customers wanted to view the program. Cablevision successfully argued that this transmission is not ‘to the public’, because each customer had a dedicated copy, and that copy was only streamed to that particular customer.
5.31 A similar question arose again in response to a new US company, Aereo, which captures live broadcast television on thousands of small aerials—one aerial for each customer—and then delivers the broadcast content to its customers via the internet. Aereo is not licensed to do this; it does not pay the retransmission fees that cable companies pay to broadcasters. In April 2013, the US Court of Appeals for the Second Circuit concluded that ‘Aereo’s transmissions of unique copies of broadcast television programs created at its users’ requests and transmitted while the programs are still airing on broadcast television are not “public performances” of the Plaintiffs’ copyrighted works under Cablevision’.
5.32 In a strong dissenting opinion, Judge Chin said the Aereo service was ‘over-engineered in an attempt to avoid the reach of the Copyright Act and to take advantage of a perceived loophole in the law’. Further, Judge Chin wrote:
Under Aereo’s theory, by using these individual antennas and copies, it may retransmit, for example, the Super Bowl ‘live’ to 50,000 subscribers and yet, because each subscriber has an individual antenna and a ‘unique recorded cop[y]’ of the broadcast, these are ‘private’ performances. Of course, the argument makes no sense. These are very much public performances.
5.33 The Cablevision decision has also been criticised. US professors Jane Ginsburg and Robert Gordon have written that the ‘court’s parsing of the text in the Copyright Act is very problematic’. Among other things, Ginsburg and Gordon stress that ‘it should not matter whether “the performance” originates from a single source copy repeatedly transmitted to individual members of the public “in different places at different times,” or from multiple copies each corresponding to a particular place and/or time’.
5.34 Elsewhere, Ginsburg, discussing Cablevision, writes:
Arguably, if the end-user’s copying would be fair use, then assisting that copying should not be infringing either, whether the assistance comes in the form of enabling the end-user to do the copying herself, or instead doing the copying for the user. But the caselaw is far from clear that copying on behalf of the user is fair use. For example, the decisions involving photocopy shops generally reject the proposition that the commercial photocopyist is in a sense subrogated to what might be educational fair use copying by the end-user.
5.35 The ALRC is wary of attempts, using new technologies, to avoid the question of whether the rights were exploited at all. In such cases, as a matter of policy, it may be preferable to give a generous interpretation to the scope of the rights, and then to consider the important question of whether the exploitation of the rights was fair.
National Rugby League Investments Pty Ltd v Singtel Optus (2012) 201 FCR 147, .
 J Ginsburg and R Gorman, Copyright Law (2012), 169.
WNET, Thirteen, Fox Television Stations, Inc. v. Aereo, Inc, USCA (2nd Circuit, 2013).
 J Ginsburg and R Gorman, Copyright Law (2012), 170.
 J Ginsburg, Recent Developments in US Copyright Law—Part II, Caselaw: Exclusive Rights on the Ebb?, Columbia Public Law & Legal Theory Working Paper 08158 (2008), 17.