Be warned!

Over the last few years it has become commonplace for local ADSL users to receive ‘network abuse’ notifications from their Internet Service Provider (ISP), warning them that their accounts will be suspended unless they resolve the problems related to ‘copyright violation.’

These copyright warnings typically list an IP address from which copyright material was allegedly illegally distributed or downloaded to. The local ISP then resolved this IP address to a phone line and subscriber to whom a warning is sent.

These notices actually originate from international monitoring organizations, and are then forwarded to the first tier ISP to which the IP address belongs. The notice is then repackaged and distributed to the subscriber to who the offending account belongs to.

The legality of these notices is debatable because the monitoring of Internet traffic in South Africa is illegal without the users’ consent. Even if the monitoring takes place outside of the country it is still a legal minefield.

Despite the legal ambiguity surrounding these notices the practice continues, with many South African broadband consumers reporting that they have received warnings about possible copyright infringement from their ISPs.

This begs the question which ISPs send out these notices, and what their motivation is for doing so.

What ISPs say

MWEB ISP CEO Derek Hershaw said that they do send copyright infringement warnings to their subscribers, but that it does not happen frequently.

“Where we become aware of potential copyright infringement we will send the notice to our customer and warn them that they might be infringing our AUP [Acceptable User Policy]. We can’t really do more than that because a “claim” that someone is infringing copyright is just that – once / if the claim if proven and we’re ordered by a court to take further action then we will,” Hershaw explained.

Openweb founder Keoma Wright says that they also forward copyright infringement notices to their subscribers, but do so begrudgingly.

“The internet IS a torrent. Why create a monster, only to dress him in pink slippers and a Winnie the Pooh nighty? Lawmakers should worry about the crime rate, as committing a murder is a lot more serious than downloading a movie about one,” said Wright.

Afrihost is another ISP which sends out regular piracy warnings to subscribers, but is also not too happy about it. 

“We merely serve notices from our upstream provider Internet Solutions,” said Afrihost CEO Gian Visser. “It is done due to pressure from IS, and we do not really have a choice other than to warn our subscribers.”

Axxess explains that they notifying their clients that have transgressed copyright infringements in support of their upstream providers. “Typically once we have notified the client, they stop whatever they are doing, and the issue is resolved,” said Axxess Marketing Director Franco Barbalich.

“However if they continue with this behaviour, our upstream providers discontinue their service. We would rather assist and warn our clients of this, than suspending a client and then explaining why,” said Barbalich.

@lantic Marketing Director Dederick Venter said that they do forward the notices received to the alleged abuser, but do not threaten service cancellation except if the subscriber contravenes their Acceptable Use Policy. Venter added that they do not receive any significant number of copyright infringement notices.

Altech Technology Concepts (“ATC”) said that they “most certainly forward copyright infringement warnings to customers when warranted”.

ATC said that they typically warn an infringing customer to desist from irregular activity and then monitor compliance. “Failure to comply may result in account termination,” said ATC MD Deidre Dawson.

Web Africa CEO Matthew Tagg said that they mostly discard copyright infringement notices because they are invalid. In the case of a valid notice they do however inform the subscriber.

“Since we now operate our own network, we have no upstream providers policies to answer to. Thus we decided our policy must be as customer centric as possible, while still operating with full compliance to the laws of South Africa,” said Tagg.

“Notices sent from outside our jurisdiction to our users are often of an automated nature, out of context and invoke foreign laws. In fact these notices could be seen as spam from our perspective and sending them on to our customers creates unnecessary stress on non-actionable threats. Valid infringement complaints however are handled via the normal legal channels and processes,” Tagg explained.

Nashua Mobile confirmed that it sends copyright infringement notices to subscribers that appear to be sharing copyrighted material. 

“We support ISPA in its commitment to upholding South Africa’s copyright laws,” said Tim Walter, Executive Head of Marketing at Nashua Mobile. “However, we also take our subscribers right to privacy seriously and do not actively monitor the content of their downloads.”

Neotel does not send copyright infringement warnings to its subscribers, arguing that it is not required by ISPA.

“We believe that this approach is consistent with our interpretation of the legal obligations of ISPs, and our obligations in terms of the ISPA Code of Conduct,” said Neotel’s Angus Hay.

iBurst’s Executive Head of Human Resources and Legal, Pearlene Singh, said that they have not sent out any copyright infringement notices.

Singh however added that iBurst is “committed to complying with South Africa’s copyright and related laws, and requires all customers and users of iBurst to comply with these laws”.

Telkom in turn said that TelkomInternet does not track the online activity of users. “However, if a subpoena is received via the South African Police Services, Telkom will take the necessary action as stated in our terms and conditions and acceptable user policy,” Telkom pointed out.

The following table provides an overview of which ISPs send out copyright infringement warnings to their subscribers.

Online piracy and copyright infringement warnings << Tell us what you think!