Local websites in danger

[Xarog]

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.

"makes or has in his possession a plate knowing that it is to be used for making infringing copies of the work"

It would be up to the plaintiff or the state to show that you positively knew that the material was going to be used for making infringing copies. So unless there's positive evidence to suggest that you had such knowledge, the court will have no recourse but to assume that you didn't, and thus you're not going to be successfully prosecuted for having a cd-collection any time soon.

 

[Ant_Brooks]

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?

Our old friend, the ECT Act also has a section dealing with this...

Information location tools
76. A service provider is not liable for damages incurred by a person if the service provider refers or links users to a web page containing an infringing data message or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hyperlink, where the service provider:
(a) does not have actual knowledge that the data message or an activity relating to the data message is infringing the rights of that person;
(b) is not aware of facts or circumstances from which the infringing activity or the infringing nature of the data message is apparent;
(c) does not receive a financial benefit directly attributable to the infringing activity; and
(d) removes, or disables access to, the reference or link to the data message or activity within a reasonable time after being informed that the data message or the activity relating to such data message, infringes the rights of a person.

I note that this section isn't particularly consistent with the take-down notice section, and doesn't provided any guidance at all as to what constitutes "informing" a service provider that rights have been infringed. So it could be just as open to abuse...

 

[Albereth]

"makes or has in his possession a plate knowing that it is to be used for making infringing copies of the work"

It would be up to the plaintiff or the state to show that you positively knew that the material was going to be used for making infringing copies. So unless there's positive evidence to suggest that you had such knowledge, the court will have no recourse but to assume that you didn't, and thus you're not going to be successfully prosecuted for having a cd-collection any time soon.

Oi - stop picking on me - I am fairly clear in my understanding. I was picking a hole in Equinox's argument about having a copy of a file on a website not being in and of itself illegal. There has to be the intent (and a whole bunch of other stuff) for it to be an offence. But - if you considered mere possession to be an offence, then mere possession of a CD collection is just as much of an offence.

 

[Albereth]

Our old friend, the ECT Act also has a section dealing with this...

I note that this section isn't particularly consistent with the take-down notice section, and doesn't provided any guidance at all as to what constitutes "informing" a service provider that rights have been infringed. So it could be just as open to abuse...

Again, a claim that rights have been infringed isn't sufficient. The infringement needs to be real - i.e. court order and then you can inform the service provider that he is pointing to the infringing activity.

There is also the use of the word 'and' which means that all of the bits before need to be valid. So if the service provider is unaware that there is infringement, a claim that there is infringement still does not make him aware that there is infringement - it merely alerts him to the fact that there may be infringement. 'May' is not the same as 'actual'.

76. A service provider is not liable for damages incurred by a person if the service provider refers or links users to a web page containing an
infringing data message or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hyperlink,
where the service provider-

a. does not have actual knowledge that the data message or an activity relating to the data message is infringing the rights of that person;
b. is not aware of facts or circumstances from which the infringing activity or the infringing nature of the data message is apparent;
c. does not receive a financial benefit directly attributable to the infringing activity; and
d. removes, or disables access to, the reference or link to the data message or activity within a reasonable time after being informed that the
data message or the activity relating to such data message, infringes the rights of a person.

 

[Ant_Brooks]

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.

Hi folks,

I'd like to made good on this promise. Below is the revised version of the letter we will now send to our members if we receive a take-down notice targeted at them. We've reworked this substantially, to make sure that the letter presents a more balanced view of the options available to ISPs in response to a TDN. Please note that this is still a draft, so it is possible that some further changes will still take place before this gets a final sign-off.

Dear ISPA member,

ISPA recently received the attached take-down notice, targeted at your organisation. Acting as your appointed agent, we have reviewed the complaint and in our opinion it meets all of the procedural requirements set out in Section 77 of the Electronic Communications and Transactions (ECT) Act.

We have notified the complainant that ISPA has accepted the take-down notice on your behalf and that it has been forwarded on to you for your attention.

ISPA's Code of Conduct requires that you do the following:
1. Respond expeditiously to this notice.
2. Inform ISPA what steps you have taken in response to this notice.
3. Keep a record of this notice, and any materials that you take down (unless possession of such materials is illegal).

You may now choose to do one or more of the following:
- Remove the content which is the subject of the take-down notice
- Refuse the take-down request
- Pass this take-down notification on to your customer
- Take any other steps you deem to be appropriate

Since removing any content could have a significant impact on your customer, ISPA recommends that you make contact with your client to draw their attention to this notice. You should also carefully consider your own acceptable use policies, and make sure that your customer is aware of these. Your customer may wish to request that you not remove any content in return for providing you with a suitably worded indemnity protecting you from any liability should the matter be taken further.

Please report what steps you have taken in response to this notice as soon as possible. Should you not respond to this notice within two days, we will attempt to contact you telephonically. Should you fail to respond after four days, you may be considered to be in breach of clause 25 of the ISPA Code of Conduct, which requires that you respond expeditiously.

Please note that Section 75 of the ECT Act provides for certain limitations on liability for third party content. However, if you choose not to remove or disable access to content referred to in a take-down notice, these protections do not apply. Please note also that ISPA has not verified any claims of unlawful activity or allegations of infringed rights contained in this take-down notice.

Should you require additional assistance from ISPA in understanding how to respond to this take-down notice, please contact the ISPA complaints team for help.

More information on the ISPA Code of Conduct is available here:
http://www.ispa.org.za/code

A copy of the ECT Act is available here:
http://www.internet.org.za/ect_act.html

Warm regards,
ISPA Secretariat

As always, constructive criticism is very welcome.

Ant Brooks
ISPA General Manager

 

[w1z4rd]

Wow... that works for me.

Thanks Ant.

 

[Gatecrasher]

As always, constructive criticism is very welcome.

Ant, I think it is a great improvement, and much less likely to lead to kneejerk reactions from ISPs.

 

[rwenzori]

Within the context of your standpoint, very impressive.

 

[Walo]

Revised take-down notice, please may we have more

Excellent template, Ant!

What would be really useful too is similar templates for both the complainant and the "customer" to inform them of their rights, as well as the requirements for a legally valid complaint.

If the industry adopts a standard process like that, and it is shown to work effectively and fairly, then one might even ask Mr Zuma & Co. to make it into law.

Better we regulate ourselves.

Waldo
Cozahost

 

[rpm]

This is great news - well done to ISPA.

 

[<moLe>]

ok..

 

[Ant_Brooks]

What would be really useful too is similar templates for both the complainant and the "customer" to inform them of their rights, as well as the requirements for a legally valid complaint.

We are planning to check and revise all of the other template letters used for the process, including the ones we send to the complainants. Getting the actual take-down notice updated was the highest priority though.

As far as a template letter for the "customer" goes, that's a lot trickier. First, each ISP's customers rights depend very heavily on the specific acceptable use policy and terms and conditions that ISP has for their services. It would be extremely difficult for ISPA to have a generic template covering every possibility. Second, ISPA doesn't have any direct contact with the ISP's customer as part of the take-down process, so we don't have a standard "customer" letter. The actual web-site owner might be the customer of a client of an ISP (as was the case for the BitFarm take-down). That complicates things even further, since the customer's rights depend both on the agreement he or she has with the ISP's client, and on the agreement in place between the ISP and its client.

Ultimately, I suspect that ISPA will have to leave the communication with the customer up to the ISP whose customer it is.

 

[Mad McMax]

Hi,

A couple of simple questions. How long does the ISP have before being in default of the TDN, and does this give him time to consult with his client ?

Secondly, what can the ISP do if the client instructs him to "Stuff that oke, don't take it down".

 

[.Froot.]

Hi,

A couple of simple questions. How long does the ISP have before being in default of the TDN, and does this give him time to consult with his client ?

Secondly, what can the ISP do if the client instructs him to "Stuff that oke, don't take it down".

The ISP, if they feel they could be jeopardized by the website in question, are entitled to remove the site. This is specified in most, if not all, ISP's T&C.

 

[Ant_Brooks]

A couple of simple questions. How long does the ISP have before being in default of the TDN, and does this give him time to consult with his client ?

The ECT Act doesn't specify a response time. It just requires that the ISP "acts expeditiously" to a take-down in order for the protections offered by the Act to apply. ISPA's take-down procedure gives ISPA's members four working days to respond to a take-down passed on by ISPA, but the response doesn't have to be to take-down the requested content.

Secondly, what can the ISP do if the client instructs him to "Stuff that oke, don't take it down".

As froot correctly points out, that depends mostly on the ISP's terms and conditions.

 

[crbuys]

MATTER UPDATE

Hi all,

An update regarding this legal matter:

1. We have received a response from ISPA which I do not even intend to respond to.
2. More importantly, we received a response from RiSA. Download it here: http://www.buys.co.za/downloads_detail.asp?ID=77.

Also, last Wednesday Keith Lister (MD of Sony BMG) invited me to his office for a chat... as a result he gave me an undertaking to delay further take down notices while we are discussion the possibility of resolving this amicably through some or other settlement.

I am not at liberty to disclose current mutual undertakings / progress, but I'm confident that this whole thing might still have a happy ending.

Apologies for not being able to share more info at this stage.

Oh yes, just to clarify another issue - I'm not representing the torrent sites and publishing letters between the parties for any sinister "publicity" reason... this is a matter of significant public interest. It has become common practice in the US and EU to publish P2P related threats and legal correspondence in open forums.

For example see http://www.chillingeffects.org/notice.cgi

Also http://www.eff.org/issues/file-sharing

Regards,

Reinhardt Buys
BUYS INC. ATTORNEYS

 

[mercurial]

Thanks Mr. Buys.

 

[Albereth]

LOL - now RiSA represent the interests of retailers. And everyone in the universe, from before time even.

And they claim to represent close to 100% of every recording ever made in SA. Cough cough BS cough cough.

And then they drivel on about respecting consitutional rights but competely ignore them.

Interesting that IPSA were given additional information but seem to have not released that to the ISPs.

Does anyone have any idea of just how much money RiSA has given to the artists?

 

[Ant_Brooks]

Interesting that IPSA were given additional information but seem to have not released that to the ISPs.

This was not the case. We passed on the entire contents of the take-down notices we received from RiSA to the ISPs involved. (I have just double-checked our mail archives to make sure of that.) I have no idea what additional information RiSA is referring to in their letter, but the take-downs we got were the take-downs we passed on.

 

[Albereth]

This was not the case. We passed on the entire contents of the take-down notices we received from RiSA to the ISPs involved. (I have just double-checked our mail archives to make sure of that.) I have no idea what additional information RiSA is referring to in their letter, but the take-downs we got were the take-downs we passed on.

LOL - what a circus they are!

Anyhow, good luck with all the good you guys are doing.

I just have this feeling that RiSA have decided to try and follow the RIAA in becoming a little money spinner of their own. They aren't acting in anyone's interests other than their own - and that just questions whether they are acting in good faith. Perhaps you should ask them how they claim to be acting in good faith?