Local websites in danger

[Iser0073]

There is no way that international hosting would ever be a viable solution for any of my sites. They are there solely to provide a user on local only bandwidth to utilise that said paid for local bandwidth.

 

[Equinox]

There is a thread dedicated to pointing out errors. You might even be rewarded for your diligence.

Go for it.

 

[.Froot.]

This will cause a lot of potential sites to go abroad for hosting... also fueled by cheaper hosting costs abroad...

 

[TecHnicaliTi]

Really ppl this is the old news that's being published now !!! their has been a bigtime update to the dealings concerning RiSA and ISPA and even MTN !

Here is a link to the updated news :
http://torrentfreak.com/defiant-bittorrent-and-nzb-sites-fight-back-against-intimidation-081110/

This a bit of what the article said for the guy's with local only :
Last week TorrentFreak reported that South Africa’s answer to the RIAA had taken down the country’s largest torrent site and an affiliated Usenet NZB site. According to the lawyer representing the sites for free, the recording industry had no standing to make a complaint. Furthermore, the actions of the sites’ host were unconstitutional. Both sites, BitFarm and NewsHost, are coming back online.

Following legal threats from the Recording Industry of South Africa (RiSA), last week we reported that the country’s biggest torrent site, BitFarm, and its sister site NewsHost (which deals with UseNet NZBs), were both closed. In many similar cases around the world, the threats would’ve been enough to permanently close the sites, but fortunately lawyer Reinhardt Buys, an expert in IP law, noticed their predicament and stepped up to represent them for free.

In order to get the sites closed, RiSA sent copyright complaint letters to ISPA (the South African ISP association) demanding that BitFarm and Newshost should “be taken down with all access to the domain name blocked”, claiming the sites breach Section 27 (1) (b) of the Copyright Act 98/1978. However, according to the site’s lawyer there are several problems, not least that the sites do not host any infringing content.

In fresh correspondence with ISPA, Reinhardt Buys refutes the allegations made against BitFarm and NewsHost. He states that not only did RiSA fail to comply with the Electronic Communications and Transaction Act 25 of 2002 due to the manner in which it presented the takedown requests, but ISPA acted unconstitutionally in dealing with the takedown requests from RiSA. The relevant section from the South African Constitution is highlighted below:

Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.

According to the correspondence, Buys states that it is uncertain if ISPA even considers the legality of takedown requests before initiating the disconnection of a site, and notes that their current takedown procedures seem to be “directed only at the protection of ISPs from possible liability for third party content, regardless of the evident harm done to online free expression, fairness and equality”.

Interestingly, Buys points to a 2004 submission by ISPA itself, on the ‘Proposed Guidelines for Recognition of Industry Representative Bodies’.

ISPA believe that is it critically important for freedom of speech that a service provider be given an option to take stance on content that is of unclear legal status. Clearly, a service provider should not host content that a court of law or some other authority has ruled to be illegal. But in a case where the legal status of content is unclear (perhaps, for example, if an unproven accusation of hate speech had been made against a particular web page), an ISP should not automatically be required to remove the content. Such a requirement would have a chilling effect on free speech.

However, all of this might be considered moot, since it appears that the complainant, RiSA, had no locus standi or ‘legal standing’ to request the takedown of the sites:

In terms of section 24 of the Copyright Act 98 of 1978, only the copyright owner may institute proceedings related to copyright infringement. The Complainant is not a copyright owner and merely a unit within an organisation that claims to represent the South African recording industry

To this end, Buys has advised the administrator of BitFarm and NewsHost to re-enable both sites and to re-engage in their previous activities, while considering claiming for losses, damages and legal costs from both ISPA and RiSA via civil litigation. In the face of further harassment or intimidation from RiSA, the sites may seek a protective interdict from the courts. Buys has also called on ISPA to implement takedown procedures “which are free of constitutional concerns”.

 

[rwenzori]

TecHnicaliTi old chap, there are numerous threads on the forum about this, some of which link to what you posted. You might also find the thread where Mr Buys offered to help.

 

[<moLe>]

ohwell

 

[Gatecrasher]

There is no way that international hosting would ever be a viable solution for any of my sites. They are there solely to provide a user on local only bandwidth to utilise that said paid for local bandwidth.

Yes, but the bulk of that bandwidth usage is not coming off your servers. The cost of bandwidth for local website owners is frankly scandalous, but that is another topic altogether...

 

[Ant_Brooks]

You are the logical organisation to take a stand.

You are in a position to take a lead, to oppose this bad legislation, to challenge it in court, and ultimately to change the internet landscape in SA for the better, for your members, and for their customers.

Lobby your members to mandate you to take a stand. Lead!

Our experience over the last twelve years is that ISPA is not the best vehicle to lobbying government about consumer rights. We are an industry body, not a consumer representative body. This means that when we say to government: "this is going to be harmful to consumers" they tend to hear "this is going to be harmful for industry, but we are claiming that it is a consumer issue because you're more likely to do something about it then". This doesn't help ISPA and it doesn't help consumers.

Or, as Gatecrasher has highlighted, the result of ISPA pointing out consumer issues is that government makes a change (I'm looking at you section 77(3)!) which deals only with that concern from an industry point of view, and then expects ISPA to be happy with that.

What South Africa needs is an more active consumer lobby separate from industry. Consumer voices are woefully missing in most of the legislative processes ISPA participates in. Having a consumer body and ISPA both lobby against broken legislation also means that government is getting pressure from two sides, not just one.

 

[Moederloos]

In this case it would be counter productive. Part of what differentiates them from their international counterparts is that they're accessible with local bandwidth.

Yes and no.
The point of those sites is to provide a "source file" that points to where the "main file" is, and the main file is local.

The "source file" is tiny - and would not make much difference to a users cap, it is the "main file" that is huge.

To host the "source files" abroad would be no problem.

 

[Albereth]

The only sensible answer for websites owners is to host their websites offshore.

It is that indemnity against wrongful take-down that stacks all the cards against website owners. There is no incentive for ISPs to consider the legality of a take-down notice. There is only incentive for ISPs to take down the website.

The other choice is to be hosted by a non-IPSA affiliated host.

Look, IPSA only looked out for the interests of its own members which is fair. But they can hardly complain if they get stick for it. And if their members lose customers because of it, well they ought to have seen that too.

Yeah - I would have taken the indemnity but I'd also stick to the very letter of the Act too.

 

[PeterCH]

Proofread?

Poster has high-end LCDs on his mind

 

[Albereth]

But since the complainant doesn't have to provide any specific facts, as in RISA's case, even that redress is useless.

I argue that they do have to provide specific facts but that means work for some people, or cost.

IPSA have painted themselves into a corner and have actually become complainants by taking on RiSA's claims and issuing a TDN to the ISP. And because all they have done is check that the 'form' was filled in correctly they have not acted in good faith.

Their capacity to receive TDNs is questionable. IPSA is not recognised by the Act as it is neither an ISP nor an agent (unless they'd like to explain how they are)

 

[Gatecrasher]

I argue that they do have to provide specific facts but that means work for some people, or cost.

I agree fully, and that is where ISPA was remiss. They should have rejected, or recommended their member reject the TDN until the specific illegal material had been identified, and they also should have rejected Risa's proposed remedial action.

Instead they notified the ISP in such a way that they probably fell over themselves in their eagerness to close down the sites.

 

[<moLe>]

I agree porn should be unbanned internationally

 

[Kincaid]

The other choice is to be hosted by a non-IPSA affiliated host.

Look, IPSA only looked out for the interests of its own members which is fair. But they can hardly complain if they get stick for it. And if their members lose customers because of it, well they ought to have seen that too.

Yeah - I would have taken the indemnity but I'd also stick to the very letter of the Act too.

I know this is going to be an unpopular thing to say but I'll do it anyway ... I've heard Telkom have a really good policy with regards to take down notices. They ask for a court order before 'screwing' their client over .

I think that's a fair policy considering that this is the individual's business. If you're going to wipe a person's business from the Internet a court should at least get a look-see at the situation.

 

[Walo]

ISPs have a responsibility to protect their clients

ISPs can't just blame these things on the ECT act and ISPA. We have responsibilities too.

We think an ISP should:

a) Require the complainant to PROVE ownership of the SPECIFIC content in question.

b) Show that the web site owner ignored requests to remove the offending content.

c) Provide a sworn statement that the content is an infringement of their rights *AND* that civil and/or criminal proceedings will be instituted against the publisher (web site owner).

We do not tolerate piracy on our infrastructure, but at the same time we will not allow our clients to be bullied either.

Waldo
Cozahost

 

[rwenzori]

ISPs can't just blame these things on the ECT act and ISPA. We have responsibilities too.

We think an ISP should:

a) Require the complainant to PROVE ownership of the SPECIFIC content in question.

b) Show that the web site owner ignored requests to remove the offending content.

c) Provide a sworn statement that the content is an infringement of their rights *AND* that civil and/or criminal proceedings will be instituted against the publisher (web site owner).

We do not tolerate piracy on our infrastructure, but at the same time we will not allow our clients to be bullied either.

Waldo
Cozahost

Good stuff! I see you're on SAIX. Out of interest would you host a torrent-tracker site?

 

[hexagon]

We think an ISP should:

a) Require the complainant to PROVE ownership of the SPECIFIC content in question.

b) Show that the web site owner ignored requests to remove the offending content.

c) Provide a sworn statement that the content is an infringement of their rights *AND* that civil and/or criminal proceedings will be instituted against the publisher (web site owner).
[/URL]

This sounds a whole lot more like it. Any comments from ISPA's side?

 

[Ant_Brooks]

This sounds a whole lot more like it. Any comments from ISPA's side?

Yes. This sounds like a very healthy approach for an ISP to have to a take-down notice. ISPA would have no problem at all with one of its members refusing a take-down notice on the above grounds.

And to re-iterate, our members do refuse take-downs. They are perfectly entitled to do so. When ISPA members ask me for advice on how to handle take-downs, I try to make that clear.

Further, I'm busy redrafting our take-down notice template to make an ISP's options in responding to take-downs much clearer than they are in the current version. I agree fully with the sentiment that as currently worded, the notice is not as balanced as it could be. In ISPA's defense, that template was written five years ago, when we were getting perhaps one or two take-downs per year for content that was clearly problematic. Given that, it isn't surprising that it was drafted to focus on the risks to ISPs in not removing content.

If I'm permitted to do so, I'll post the revised version on these forums for all to see once it has been revised.

 

[rsa-ace]

Yes and no.
The point of those sites is to provide a "source file" that points to where the "main file" is, and the main file is local.

The "source file" is tiny - and would not make much difference to a users cap, it is the "main file" that is huge.

To host the "source files" abroad would be no problem.

the "source files" could be less than a kb it that would still not help the argument. these sites exist for the people who use their local cap. local being not international.

isp's offer very cheap local only accounts. and you definitely aren't gonna use your expensive international account just on local stuff.