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."

Comments

This Slashdot story...

[drdink]

is owned and brought to you by Xtra! Redistribution is prohibited.

Universities

[smoondog]

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

What is "our systems"?

[drdink]

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?

Re:What is "our systems"?

[Bishop]

Systems (including posting messages, uploading files, importing data or engaging in any other form of communication)

I would say that last part makes it very clear.

To XTRA customers you have until May 4 2003 before these new terms affect you. Contact you lawyer, or unsubscribe now.

Re:What is "our systems"?

[EvilMal]

This was my first reaction too, perhaps they merely need to clarify, or re-word the TOS. It is quite possible this is a misunderstanding, and they may have had no intention of it being interpreted this way.

Maybe someone should try asking them?

whoa

[Bishop]

I read the Terms expecting to see a typical poorly written terms of service with wording that could be interpreted to mean that the ISP owns your work. Instead I find the unambiguous:

you grant to Xtra a perpetual, royalty-free, non-exclusive, irrevocable, unrestricted, worldwide licence

That is some very scary stuff.

Re:whoa

[WolfWithoutAClause]

Not only do they own the work but:

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.

Which seems to say, that you don't own your own work anymore either.

I hoped that this is a late April fool; but it was updated 4th April.

This is really quite remarkable.

Offending Clause (in case of Slashdotting)

[Copperhead]

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.

exploit

[Stinson]

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"?

Re:exploit

[Dyolf Knip]

Connotation is such a funny thing. In this context, "use" and "exploit" would mean basically the same thing, yet they chose to use the word that conjures sensations of being ripped off. Maybe that sort of thinking is just inherent to lawyers.

Won't work but...

[cornice]

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.

Media perspective

[NewtonsLaw]

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 what about warez?

[mcdrewski42]

So, since they have all the rights, does that by implication mean they can be prosecuted for any w@rez, ripped CDs or similar?

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.

By uploading them I'm expressly waiving any rights, and the associated responsibilities?

Sounds like an easy way to 'protest'.

Xtra's TOS has now changed....

[NZKiwi]

Xtra's TOS has now changed...., it now says:

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

Re:Xtra's TOS has now changed....

[Bishop]

Interesting. I still take issue with the wording as it is overly general. I think I understand what the agreement is trying to accomplish. Xtra is trying to protect themselves from (frivolous) lawsuits by customers who upload content to an Xtra owned webserver not understanding that said content has now been effectively "published" to the world. Additionally it allows Xtra to make backups of their webservers and now worry about customers trying to force Xtra to purge content from the backups years later. There has been precedents for such foolishness from atleast one (proably many) Usenet kook years ago. (This should come as no surprise to anyone.)

I personally still feel that the wording is still too general. Specifically: any other form of communication. The final limited purposes clause does limit the rights sought by Xtra, but it still leaves the door wide open for abuses. One of the problems with clauses such as these is that while the current owners/management may not have any intention of abusing their customers, future owners may not have the same ethics.

Re:Simple question, genuinely asked...

[Bishop]

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.