Local websites in danger

Duty to protect

rwenzori said:
Good stuff! I see you're on SAIX. Out of interest would you host a torrent-tracker site?
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Provided the content hosted on our servers is legal and does not constitute an violation of our AUP, then yes we will host it.

We will not tolerate being made accomplices in IP theft or piracy, but we also strongly believe all ISPs have a DUTY to support and protect freedom of speech.

That duty (especially) include times when we do not agree with what is being (legally) said.

At any rate, shutting a site down is a last resort - when all else failed. In 9 years of hosting that has not happened once in our company.

Waldo
Cozahost
 
Walo said:
Provided the content hosted on our servers is legal and does not constitute an violation of our AUP, then yes we will host it.

We will not tolerate being made accomplices in IP theft or piracy, but we also strongly believe all ISPs have a DUTY to support and protect freedom of speech.

That duty (especially) include times when we do not agree with what is being (legally) said.

At any rate, shutting a site down is a last resort - when all else failed. In 9 years of hosting that has not happened once in our company.

Waldo
Cozahost
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Nice sidestep. Would you host a site carrying .nzb files referencing copyright-protected content, but not the content itself?
 
Kincaid said:
I know this is going to be an unpopular thing to say but I'll do it anyway :D ... 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 :D.

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.
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On the other debate thread someone from ISPA said Telkom was going to sign-up with ISPA if I recall correctly. So just a matter of time.
 
rwenzori said:
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.
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He is well aware of that, since he is a moderator on Newshost ;)
 
No piracy

rwenzori said:
Nice sidestep. Would you host a site carrying .nzb files referencing copyright-protected content, but not the content itself?
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Would you rent out your garage to guys fronting for a stolen goods syndicate?

Waldo
Cozahost
 
Shame man....

You know how much revenue the poor guy is losing because of all these illegal sites? Like lots!

He's even turned to drinking to numb the pain!
His chick left him too!

Maybe he and Mandoza should laaik hook up and stage a "we stand together coz chicks don't dig us lank coz the interwebs stole our bling money" concert.

Then both the people who signed up with RiSA could go!
 
Walo said:
Would you rent out your garage to guys fronting for a stolen goods syndicate?
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Well there's nothing either in law applicable to SA, nor your AUP that forbids it.

From the AUP :
"Violations of the rights of any Person protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations, including, but not limited to, the installation or distribution of "pirated" or other software products that are not appropriately licensed for use by Customer."

With NZB there is no legal right violated because the NZB files are essentially identifiers for the files rather than the files themselves. The site as such would be immune from prosecution because the copyright laws in SA can only apply to those that *actually* violate the copyright to reproducing the copyrighted material.
 
Xarog said:
With NZB there is no legal right violated because the NZB files are essentially identifiers for the files rather than the files themselves.
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Xarog, this is an interesting point. I am not a lawyer, but my personal opinion matches yours. Under South African law, I don't think that a pointer to a file rather than the file itself constitutes a copyright infringement. (To repeat for emphasis: This is just my personal opinion.)

I've discussed this issue a little with some legally minded colleagues, and they don't all agree with my opinion. Some of them think that there is at least a possibility that a court would decide that pointers to illegal files are, in turn, illegal. The legal system is complex and sometimes unpredictable. Ultimately, it is impossible to be sure until a test case makes it to court.

Until then, anyone saying "NZB files are legal" or "NZB files are illegal" actually means "my interpretation of the law is that NZB files are legal/illegal". And this applies equally to RiSA or to the owner of a web site hosting NZB files.
 
Ant_Brooks said:
I've discussed this issue a little with some legally minded colleagues, and they don't all agree with my opinion. Some of them think that there is at least a possibility that a court would decide that pointers to illegal files are, in turn, illegal. The legal system is complex and sometimes unpredictable. Ultimately, it is impossible to be sure until a test case makes it to court.
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Yes, and then it would depend on the judge you get, I suppose. You never really know until it happens.
 
I believe it would ultimately come down to a judge's interpretation of whether "copyright subsists" within the hash of a file/pointer. In the case of torrent files, the hash is merely an integrity check for a video/audio/other file, which in turn may or may not contain copyrighted content. Does the copyright owner hold rights to the hash? No, I wouldn't think so.

SA_Copyright_Act_1978 - 27.2
Any person who at a time when copyright subsists in a work makes or has in his possession a plate knowing that it is to be used for making infringing copies of the work, shall be guilty of an offence.
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On the other hand, would it be a stretch to expect the interpretation of "plate" to not include the hash (which is arguably a form of "positive" for the files).

(4) Any person who causes a broadcast to be rebroadcast or transmitted in a diffusion service knowing that copyright subsists in the broadcast and that such rebroadcast or transmission constitutes an infringement of the copyright, shall be guilty of an offence.
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Reading further into the Copyright Act, can any torrent site administrators who are aware that the content they are pointing to may be copyrighted be labeled as "causing a broadcast" via diffusion service?


I'm no lawyer and only have experience from various ISP's engineering departments, but surely there are enough points in that Copyright Act for an ISP to feel justified in protecting themselves (and arguably, the public) from further prosecution by removing the content?

I think the dragging of the ISPA into all of this is a bit silly. The ISPA's facilities provide a process for the checking of legitimacy of claims (i.e. do they fulfill the procedural requirements of the ECT Act), not the legality thereof. Ultimately, that responsibility should lie with the ISP member themselves. It is the ISP's decision whether to protect the rights of the consumer (their customer) or to interpret the complaint themselves and assess whether an alledged infringement warrants the takedown being adhered to. The ISPA offers them more than enough information (including the alleged infringement and contact details of the complainant) for them to make an apt decision. Where the consumer's constitutional rights fall into that decision, I don't know, but I can't see that the ISPA's involvement is unconstitutional.

As has already been pointed, the ISPA is really just the messenger-boy. I feel that the judging of the "legality" should fall under under the ISP's Acceptable Use Policies and interpretation of the ECT and other applicable laws. It should not be the ISPA's responsibility.
 
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Equinox said:
I think the dragging of the ISPA into all of this is a bit silly. The ISPA's facilities provide a process for the checking of legitimacy of claims (i.e. do they fulfill the procedural requirements of the ECT Act), not the legality thereof. Ultimately, that responsibility should lie with the ISP member themselves. It is the ISP's decision whether to protect the rights of the consumer (their customer) or to interpret the complaint themselves and assess whether an alledged infringement warrants the takedown being adhered to. The ISPA offers them more than enough information (including the alleged infringement and contact details of the complainant) for them to make an apt decision. Where the consumer's constitutional rights fall into that decision, I don't know, but I can't see that the ISPA's involvement is unconstitutional.

As has already been pointed, the ISPA is really just the messenger-boy. I feel that the judging of the "legality" should fall under under the ISP's Acceptable Use Policies and interpretation of the ECT and other applicable laws. It should not be the ISPA's responsibility.
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I think the IPSA dragged themselves into this one. They are not the agents of the ISP that hosted Bitfarm, they are an association representing the interests of the industry.

RiSA should not have sent them the TDN and they should never have sent the TDN to the ISP. But I suppose they thought that they were being helpful. See, no good deed goes unpunished.
 
Equinox said:
I'm no lawyer and only have experience from various ISP's engineering departments, but surely there are enough points in that Copyright Act for an ISP to feel justified in protecting themselves (and arguably, the public) from further prosecution by removing the content?
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Yeah - trouble with law is that you need to read all the little bits and try and steer a course through the ambiguity. You point about a plate has a requirement that it would be used to make a record.

Okay - so someone is hosting an illegal file but whatever definition you want to use. I am not arguing about torrents. If you really wanted to push the point just having the file on a computer could mean a heap of trouble. That 'plate' (includes any stereotype, stone, block, mould, matrix, transfer, negative, record, disc, storage medium or any version of a work of whatsoever nature used to make copies) could be used to make a record - (means any disc, tape, perforated roll or other device in or on which sounds are embodied so as to be capable of being automatically reproduced therefrom or performed.)

It also means that your legal CD collection is actually illegal. Any store bought CD can be used to create another.
 
Disclaimer : I do not have a legal degree. I am a law student, however.

Ant_Brooks said:
Xarog, this is an interesting point. I am not a lawyer, but my personal opinion matches yours. Under South African law, I don't think that a pointer to a file rather than the file itself constitutes a copyright infringement. (To repeat for emphasis: This is just my personal opinion.)

I've discussed this issue a little with some legally minded colleagues, and they don't all agree with my opinion. Some of them think that there is at least a possibility that a court would decide that pointers to illegal files are, in turn, illegal. The legal system is complex and sometimes unpredictable. Ultimately, it is impossible to be sure until a test case makes it to court.

Until then, anyone saying "NZB files are legal" or "NZB files are illegal" actually means "my interpretation of the law is that NZB files are legal/illegal". And this applies equally to RiSA or to the owner of a web site hosting NZB files.
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That is a good point. But when I gave my opinion I was also thinking of the ramifications that such a ruling would have.

If such pointers are declared illegal, what happens to locally hosted search sites, seeing as they provide the same service? Do we start issuing TDNs for ananzi as a whole?*

To me, it's more or less like the silly laws on encryption. If the letter of the law was followed, then no one would be able to do online banking (as an example, in actuality the average south african's experience of the internet as a whole would grind to a halt). The courts are going to (and indeed have to) avoid rulings which lead to completely irrational consequences.

*The point with the search engine is that no search engine using bots to date mine pages will ever be able to control the links that they refer to; the only possible measure that I could see is that the bots themselves contain a blacklist of words. But then this *would* end up with situations where pages with the words "mandoza" and "torrent" would have to be delisted, even if the page itself was simply saying, "Copyright laws are bogus, and I should be able to get whatever Mandoza songs that I wish via torrents." That in turn would lead to an unreasonable infringement on the freedom of speech imo.

Equinox said:
I believe it would ultimately come down to a judge's interpretation of whether "copyright subsists" within the hash of a file/pointer. In the case of torrent files, the hash is merely an integrity check for a video/audio/other file, which in turn may or may not contain copyrighted content. Does the copyright owner hold rights to the hash? No, I wouldn't think so.


On the other hand, would it be a stretch to expect the interpretation of "plate" to not include the hash (which is arguably a form of "positive" for the files).


Reading further into the Copyright Act, can any torrent site administrators who are aware that the content they are pointing to may be copyrighted be labeled as "causing a broadcast" via diffusion service?


I'm no lawyer and only have experience from various ISP's engineering departments, but surely there are enough points in that Copyright Act for an ISP to feel justified in protecting themselves (and arguably, the public) from further prosecution by removing the content?

I think the dragging of the ISPA into all of this is a bit silly. The ISPA's facilities provide a process for the checking of legitimacy of claims (i.e. do they fulfill the procedural requirements of the ECT Act), not the legality thereof. Ultimately, that responsibility should lie with the ISP member themselves. It is the ISP's decision whether to protect the rights of the consumer (their customer) or to interpret the complaint themselves and assess whether an alledged infringement warrants the takedown being adhered to. The ISPA offers them more than enough information (including the alleged infringement and contact details of the complainant) for them to make an apt decision. Where the consumer's constitutional rights fall into that decision, I don't know, but I can't see that the ISPA's involvement is unconstitutional.

As has already been pointed, the ISPA is really just the messenger-boy. I feel that the judging of the "legality" should fall under under the ISP's Acceptable Use Policies and interpretation of the ECT and other applicable laws. It should not be the ISPA's responsibility.
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An interesting argument. However, I believe "diffusion service" would refer to a broadcast to many people without a specific intended recipient. Although torrents and other p2p services are distributed, at no time does any of the copyrighted material get sent to anyone who didn't specifically request it. There is also the fact that the law only refers to broadcasts transferred via diffusion services. Copyrighted material that was never broadcast would be exempt from this law even IF the courts held that p2p was a diffusion service.

As for the plate argument, the plate itself would contain the entirety of the copyrighted material, and thus it differs fundamentally from a file hash. You cannot posess the copyrighted material merely because you have the hash. You could do so if you posessed a plate (which I presume to be a record plate). Then I also doubt that the court would be willing to take a generic interpretation of the word "plate" to mean all forms of media which could contain copyrighted material. When the law was made, books existed as copyrighted material, so why didn't parliament also make references to these other common forms in which copyrighted material could be stored?
 
I think the IPSA dragged themselves into this one. They are not the agents of the ISP that hosted Bitfarm, they are an association representing the interests of the industry.

RiSA should not have sent them the TDN and they should never have sent the TDN to the ISP. But I suppose they thought that they were being helpful. See, no good deed goes unpunished.
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Well, I tend to disagree. They're an association representing the interests of their members. Not necessarily the whole industry.

They provide an expedient way for ISPs to receive the notices from complainants, ensuring that they first meet the procedural requirements of the ECT. They also set down requirements of timeliness which their members must adhere to as part of the Code of Conduct they agreed to when they became members. These are all international organisation affairs between the "watchdog" (if you will) and the ISPs themselves.

ISPs aren't forced to join the ISPA. When they do, they commit to certain conditions (including the takedown notice procedures). They agree to allow the ISPA to be the messenger-boy for them. They agree to let the ISPA worry about the legitimacy (again, not legality!) of the complaints.

I don't know how they can be an "association representing the industry" when they admit themselves that they can only serve notices to their members (companies who have PAID to be part of the association). Assuming MTNNS is a member of the ISPA, then the ISPA _had_ indeed been given explicit authority by MTNNS to act as they messenger-boy for them.

So again, I disagree. RiSA had to choice to send the takedown to the ISP directly (where the ISP would be within their rights to ignore it or delay as much as possible) or to go through the ISPA (where they know that there are requirements of timeliness that are committed to by the members).

I don't know about you, but if it were my copyright allegedly being infringed, I would definitely go with the latter.
 
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