Optus has announced that it will seek leave from the High Court of Australia to appeal the recent Full Court of the Federal Court decision that its cloud-based ‘TV Now’ service infringes copyright.

Optus has no automatic entitlement to have the High Court hear an appeal. It must seek the consent of the High Court, through a ‘special leave’ application.

Only a small percentage of special leave applications succeed. Nevertheless, given the general importance of the legal issues involved (especially the question of who ‘makes’ an automated, cloud-based recording) and the fact that the first instance decision was contrary to the Full Court deicsion, there must be some reasonable prospect that the High Court will agreed to hear an appeal.