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NZ's Largest ISP Owns Your Work
NZKiwi writes "New Zealand's Largest ISP has quietly introduced a new clause into their TOS; basically if it goes through their servers, they own it, and can exploit it as they see fit.
Have a look at their TOS, it's under section 4 "Our Use of Your Intellectual Property" I think it's time I shopped for a new ISP."
is owned and brought to you by Xtra! Redistribution is prohibited.
Beware, Nugget is watching... See?
I suggest someone send this to the attention of some universities with researchers who use that ISP. They will not be happy with changes to agreements that violate agreements their employees already have with them.
-Sean
The thing says that they own things you post, save, upload to, and communicate on their systems. It isn't clear to me whether this includes things that pass through their routers and go onto the Internet. It isn't staying on their system in that scenario. Do any lawyers and armchair analysists have any thoughts on this?
Beware, Nugget is watching... See?
That is some very scary stuff.
Consider this example: Some wacky hillbilly suddenly decides that, if you use the road that happens to pass through one of his plots of land, you, your wife, your car, and all your belongings are suddenly his to do as he sees fit, and thus proceeds to rob you blind. Why should this be any more legal than what these people are claiming?
If something is mine, regardless of what the fuck I choose to do with it, then you have no right to claim it for your own perverted uses.
Of course this clause is ridiculous and would never stand up in any decent court, but the problem is that if you tell a lie one too many times people, yourself included, will begin to see it as the truth. We cannot sit idly by while things like these are happening all over the place. It's not the first time this happens and if we keep sitting on our collective arse, like we're all so fond of doing, then 1984 will arrive a bit late instead of never.
Personally, there's not much I can do against an ISP on the other side of the world, but I will sure talk to all my friends in NZ to warn them about this and will be advising them to send letters of protest. The snail-mail kind, which is usually taken a bit more seriously.
By placing any content, software or anything else ("Materials") on our Websites or Systems (including posting messages, uploading files, importing data or engaging in any other form of communication), you grant to Xtra a perpetual, royalty-free, non-exclusive, irrevocable, unrestricted, worldwide licence to do the following in respect of the Materials:
* use, copy, sublicence, redistribute, adapt, transmit, publish, delete, edit and/or broadcast, publicly perform or display, and
* sublicence to any third parties the unrestricted right to exercise any of the rights granted.
The above rights you grant to us includes the right to exploit all proprietary rights in any of the Materials including, but not limited to, rights under copyright, trade mark, service mark or patent laws under any jurisdiction worldwide. You expressly waive in favour of Xtra and any other party authorised by Xtra all moral rights and any similar rights in any jurisdiction which you may have or may later acquire in respect of any relevant Materials.
Your reality is lies and balderdash and I'm delighted to say that I have no grasp of it whatsoever. - Baron Munchausen
Its enforcable because nothing is making you agree to their clauses. You can just find a different ISP if you don't agree to what they are requiring.
my favorite part i think of the entire thing is the statement, "The above rights you grant to us includes the right to exploit all proprietary rights in any of the Materials"
Don't you just love the fact that they openly used "exploit"?
For the personal data I would encrypt it all. The ISP can waste all the money they want to decrypt it.
For everything else this won't work anyway since most of what travels across their lines is not owned by the people accepting the contracts. Most ISP traffic is of the download variety. This means that all those pages, gifs, jpegs, movies, songs, etc are not available to these customers to give. In most countries you can't give or sell what you don't already own.
This seems like a wildly stupid CYA type of move. It seems that claiming ownership to whatever travels your lines could get you in big trouble. Who wants to lay claim to illegal content? It seems safer to claim no responsibility.
The solution, of course, is simple. I will demonstrate:
Email -> PGP (or GPG)
Telnet -> SSH
HTTP -> HTTPS
etc...
Xtra can sell my meaningless bits to whoever they want. Want a copy of my SSL session? Feel free, but I'm not waiting around for you to decrypt it. (Err.... disclaimer: this is a hypothetical; I'm not actually an Xtra customer, though if I was I wouldn't be too worried, between this and some potential issues over legality pointed out by others)
If whatever you are doing cannot be done securely, and is not already being done securely, it deserves to be stolen.
Today's Aardvark Daily has plenty to say on this ISP's new Service Terms too and raises some other very interesting (coincidental) issues.
So, since they have all the rights, does that by implication mean they can be prosecuted for any w@rez, ripped CDs or similar?
By uploading them I'm expressly waiving any rights, and the associated responsibilities?
Sounds like an easy way to 'protest'.
/* affect != effect */ void affect(int *thing,int effect) { *thing += effect; }
Since they just claimed ownership of anything passing throug there servers, then those songs i downloaded arent really mine, therefore the RIAA can just attack the isp. Hey, and someone e-mail someone in austraila some child pron, lets nail the isp for owning that too!!!
SO how long can this isp last with NO comercial customers?
All Troll + "offtopic" mods are meta moderated as "Unfair", because you abused the system.
Actually, it's more like:
Clause Four to rule them all
Clause Four to find them
Clause four to bring them all
and in the bitstream bind them
In the Land of xtra where the Lawyers lie.
/* affect != effect */ void affect(int *thing,int effect) { *thing += effect; }
Xtra does not claim ownership of any content or material you provide or make available through the Services ("Customer Material"). However, by placing any Customer Material on our Websites or Systems (including posting messages, uploading files, importing data or engaging in any other form of communication), you grant to Xtra a perpetual, royalty-free, non-exclusive, irrevocable, unrestricted, worldwide licence to do the following in respect of the Customer Materials:
* use, copy, sublicence, redistribute, adapt, transmit, publish, delete, edit and/or broadcast, publicly perform or display, and
* sublicence to any third parties the unrestricted right to exercise any of the rights granted,
in each case for the limited purposes for which you provided or made the Customer Materials available or to enable us and our suppliers to provide the Services.
where it used to say
By placing any content, software or anything else ("Materials") on our Websites or Systems (including posting messages, uploading files, importing data or engaging in any other form of communication), you grant to Xtra a perpetual, royalty-free, non-exclusive, irrevocable, unrestricted, worldwide licence to do the following in respect of the Materials:
* use, copy, sublicence, redistribute, adapt, transmit, publish, delete, edit and/or broadcast, publicly perform or display, and
* sublicence to any third parties the unrestricted right to exercise any of the rights granted.
The above rights you grant to us includes the right to exploit all proprietary rights in any of the Materials including, but not limited to, rights under copyright, trade mark, service mark or patent laws under any jurisdiction worldwide. You expressly waive in favour of Xtra and any other party authorised by Xtra all moral rights and any similar rights in any jurisdiction which you may have or may later acquire in respect of any relevant Materials.
Strange how fast a little publicity changes things
This is incorrect. If you, in good faith, agree to a contract that is not legal, the contract, in whole or in part, is void. (This varies from jurisdiction.) There are some rights you can't give up. Additionally if a contract is subject to misenterpretation a judge can amend and even strike down the contract. For even more fun if you can convince a judge that you did not fully comprehend the ramifications of a contract the judge can again amend or declared the contract void.
The above is a superficial look at contract law, and the reason why I hire contract lawyers.
(Don't) Post on or transmit through XXXXX's network any material that is in violation of the Digital Millenium Copyright Act. Should a complaint of copyright infringement be asserted to XXXXX from an agent of the claimed copyright holder, XXXXX will require that the claimed infringing material be removed immediately. Should the alleged violator assert that the works are not in violation of copyright, an appeal may be made in writing to the XXXXX Designated Agent specified in the XXXXX Copyright Complaint Policy.
AND
Any violations of the XXXXX Acceptable Use Policy (AUP) may result in XXXXX billing the violator at the rate of $120.00/hr. or $500.00 which ever is greater, for administrative time incurred answering complaints, parsing mail logs, etc. A minimum $500.00 fee per complaint and/or individual piece of material will also be charged, to be paid immediately to XXXXX. Payment of this fee does not waive any other fines of penalties that may be levied by XXXXX or any other state, federal or international organizations.
AND
The XXXXX Internet Acceptable Use Policy prohibits the transmission of copyrighted material over our IP network, or the storage of copyrighted material on our servers.
If you believe that your copyrighted work is being hosted on a XXXXX IP address in violation of the Digital Millennium Copyright Act, please follow the procedures outlined below.
So basically, if someone claims they hold the copyright on anything I have stored on the server, I can be sent a giant bill and have my service turned off. I used to have some original songs on my server (copyrighted by me, of course), could I be in violation if I call and report the existence of copyrighted material? Plus, it expressly forbids the transmission of ANY copyrighted work thru them. Which would include the balance of the net. Ironically, they have a copyright 2003 at the bottom of the page, so I could be kicked off at any time, since I have now viewed and copy/pasted the TOC.
Is there a list of ISP TOCs out there? This one was recently changed to include the whole DMCA thing. I'd like to get a feel for what other ISPs are charging their users with.
So does this give xtra the rights to take all names and email addresses of people sent messages and use them for advertising and sell them to others?
sublicence to any third parties the unrestricted right to exercise any of the rights granted
I hope that enough people write that this gets changed! I could see them harvesting every email address that goes through their smtp servers and pop servers and then selling that data.
You're unhappy with a policy instituted at the very top of this company and you propose to jump ugly with the minimum wage script following monkeys working the help desk? I don't think that'll deliver your message where it needs to be delivered.
I see even classic Slashdot is now pretty much unusable on dial up anymore.