South African spammer pays R65,000 to settle case

MagicDude4Eva said:
The request from ISPA was to take down the "infringing" content (our search page) and since we denied this request where subsequently threatened by their member that our "website will be deleted" (never mind that we host our own kit and no-one would have access other than damaging equipment). I guess you can anticipate where this eventually went, but it pretty much defines very much how ISPA operates. In short, ISPA is incapable (and perhaps this has changed since July 2013) to properly evaluate even the most obvious issue such as search page and still wanting to go in full force to protect the complainant and the ISP (it went as far as the ISP wanting us to sign an "indemnity agreement", which in itself would be pointless as the ECT act already indemnifies ISPs).
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ISPA is not "incapable" of evaluating the merits of Take-Down Notices (TDNs). Rather, the legislated process does not allow ISPA to evaluate the merits of TDNs. Provided that a TDN meets the (very low) standards set out in ECTA, ISPA must pass that TDN on to the relevant member. As the legislation currently stands, ISPA may not reject a TDN, no matter how odd, as long as it meets the requirements of ECTA.

Worse, ECTA does not permit the target of a TDN to respond in any way whatsoever. So if someone logs a TDN with ISPA against your site, you have absolutely no legal right whatsoever to respond to ISPA, or try to counteract that TDN. This is a very serious problem.

ISPA's views on the shortfalls of Chapter XI of ECTA have been aired many times previously, including on these message boards. It is no secret that ISPA believes that there are some very serious problems with that chapter. ISPA has made several submissions to policy makers over the last decade highlighting those problems, including comments on the ECTA Amendment Bill, which attempted to fix some of the flaws, but which now seems to have stalled.

In short, please don't confuse these two issues:
1. ISPA meeting its legal obligations to handle Take-Down Notices as required by ECTA.
2. ISPA thinking that the ECTA process is flawless and without scope for improvement.

The first does not imply the second. Just like anyone else, ISPA can be unhappy with a law and yet still comply with it.
 
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Ant_Brooks said:
ISPA is not "incapable" of evaluating the merits of Take-Down Notices (TDNs). Rather, the legislated process does not allow ISPA to evaluate the merits of TDNs. Provided that a TDN meets the (very low) standards set out in ECTA, ISPA must pass that TDN on to the relevant member. As the legislation currently stands, ISPA may not reject a TDN, no matter how odd, as long as it meets the requirements of ECTA.

Worse, ECTA does not permit the target of a TDN to respond in any way whatsoever. So if someone logs a TDN with ISPA against your site, you have absolutely no legal right whatsoever to respond to ISPA, or try to counteract that TDN. This is a very serious problem.

ISPA's views on the shortfalls of Chapter XI of ECTA have been aired many times previously, including on these message boards. It is no secret that ISPA believes that there are some very serious problems with that chapter. ISPA has made several submissions to policy makers over the last decade highlighting those problems, including comments on the ECTA Amendment Bill, which attempted to fix some of the flaws, but which now seems to have stalled.

In short, please don't confuse these two issues:
1. ISPA meeting its legal obligations to handle Take-Down Notices as required by ECTA.
2. ISPA thinking that the ECTA process is flawless and without merits.

The first does not imply the second. Just like anyone else, ISPA can be unhappy with a law and yet still comply with it.
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you can however send them a bill for processing
impossible to enforce payment but you never know
 
MagicDude4Eva said:
The ECT indemnity would also not apply to ISPs, as they clearly host the content and replicate it with intent from international news-servers and as such endorse piracy (in the same line, ISPA being aware of it and never having done anything about it also is not a good thing). SAFACT where are you when we need you :whistle:
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A few years back, I spent some time advising SAFACT[1] on exactly this issue. (They asked ISPA for advice.) I basically provided a step-by-step guide as to how they might lodge a valid take-down notice targeted at content hosted on a Usenet news server hosted by an ISPA member. I was fully expecting them to do exactly that, which would have at least generated some precedent. For whatever reason, they chose not to pursue the matter. My suspicion is that Usenet news now accounts for such a negligible fraction of copyright infringements compared to other distribution channels, that it just isn't worth the effort. But that's just my suspicion.

[1] On second thoughts, it might have been RISA that asked and not SAFACT.
 
Paul Hjul said:
you can however send them a bill for processing
impossible to enforce payment but you never know
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You mean send the person lodging the Take-Down Notice a bill? I wish ISPA could do that. A significant number of TDNs are filed by lawyers on behalf of copyright holders, and I'm absolutely sure those lawyers are charging their clients for essentially outsourcing their problem to ISPA. Sadly, charging for TDNs is just not something supported by ECTA. ISPA can't impose a fee if ECTA doesn't permit that.
 
Ant_Brooks said:
And your basis for this evaluation is what exactly? If memory serves, that R25,000 fine was imposed based on the ISP sending a unsolicited mail to one person. That ISP did not spend a whole year sending out spam. They send spam to one person. In my opinion, R25k is a stiff fine under those circumstance.

You can't. ISPA doesn't currently publish its adjudications.
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Another error. How can we see if ISPA is carrying out its function if they aren't transparent? This is just ludicrous!
 
Ant_Brooks said:
You mean send the person lodging the Take-Down Notice a bill? I wish ISPA could do that. A significant number of TDNs are filed by lawyers on behalf of copyright holders, and I'm absolutely sure those lawyers are charging their clients for essentially outsourcing their problem to ISPA. Sadly, charging for TDNs is just not something supported by ECTA. ISPA can't impose a fee if ECTA doesn't permit that.
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The ECTA doesn't prohibit you from sending a bill but it doesn't provide for it

The lawyers can tear up the bills but what you can work towards is an unjust enrichment claim
you can't impose it but you can ask
 
Taranis said:
Another error. How can we see if ISPA is carrying out its function if they aren't transparent? This is just ludicrous!
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But I'm pretty sure the ISPA members can.
And thats what the ISPA is there for, their members. Not the consumers.

You're getting confused, try to keep up. This has been explained multiple times.
 
daffy said:
But I'm pretty sure the ISPA members can.
And thats what the ISPA is there for, their members. Not the consumers.

You're getting confused, try to keep up. This has been explained multiple times.
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Ducky, WASPA publishes theirs. Why do they see no issue?

They are also "for members" in a similar fashion.

Remember that ISPA is there in lieu of government intervention. Government would not subscribe to secrecy in this. That also likely explains why Telkom doesn't want to touch ISPA.
 
Ant_Brooks said:
A few years back, I spent some time advising SAFACT[1] on exactly this issue. (They asked ISPA for advice.) I basically provided a step-by-step guide as to how they might lodge a valid take-down notice targeted at content hosted on a Usenet news server hosted by an ISPA member. I was fully expecting them to do exactly that, which would have at least generated some precedent. For whatever reason, they chose not to pursue the matter. My suspicion is that Usenet news now accounts for such a negligible fraction of copyright infringements compared to other distribution channels, that it just isn't worth the effort. But that's just my suspicion.

[1] On second thoughts, it might have been RISA that asked and not SAFACT.
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I think piracy via Usenet servers is higher than anything. Ask your ISP members what the highest traffic protocol on their network is and they will tell you it is usenet traffic.

Surely the above should be in your interest to protect your members as they are undoubtedly host illegal content and also are the party which distributes that content. Some ISPs even proudly advertise their long retention periods and others turn a blind eye on their customers hosting such content.

So it is knowingly participating in a number of criminal acts - not so?
 
Taranis said:
Ducky, WASPA publishes theirs. Why do they see no issue?
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Because they want to?

I don't understand your fascination with comparing WASPA to ISPA. They're two completely different bodies, serving different purposes, constituted under different codes.

Are you the kind of person who walks into a Burger King and demands they serve you a Big Mac, because they're also a hamburger fastfood chain?
 
Taranis said:
Another error. How can we see if ISPA is carrying out its function if they aren't transparent? This is just ludicrous!
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ISPA isn't obliged to publish its adjudications. ISPA is obliged to submit a comprehensive report on its complaints and TDNs to the Minister each year, which it does. (The statistics I quoted earlier came from that report.) You might argue that it would be beneficial to ISPA to be completely transparent and publish all of its adjudications, and I would agree that there is some merit to such an argument.

However, at the risk of incurring Dominic's wrath for accidentally conflating ISPA and WASPA further in the minds of some MyBB readers, I'd like to point out that WASPA's web site contains every single ruling that WASPA has made over the last decade. That's more than a thousand adjudications and appeal reports. And I'm not at all convinced that that level of transparency is particularly useful to WASPA. All that happens is that people cherry-pick and quote from specific reports that favor whatever point of view they might hold.

In fact, I note that you did exactly that earlier in this thread. So you'll have to forgive me if I'm not convinced that ISPA publishing its rulings is in any way going to convince you that it is carrying out its function. Based on your earlier comments on WASPA, the evidence is actually that the exact opposite is true...
 
Ant_Brooks said:
ISPA isn't obliged to publish its adjudications. ISPA is obliged to submit a comprehensive report on its complaints and TDNs to the Minister each year, which it does. (The statistics I quoted earlier came from that report.) You might argue that it would be beneficial to ISPA to be completely transparent and publish all of its adjudications, and I would agree that there is some merit to such an argument.

However, at the risk of incurring Dominic's wrath for accidentally conflating ISPA and WASPA further in the minds of some MyBB readers, I'd like to point out that WASPA's web site contains every single ruling that WASPA has made over the last decade. That's more than a thousand adjudications and appeal reports. And I'm not at all convinced that that level of transparency is particularly useful to WASPA. All that happens is that people cherry-pick and quote from specific reports that favor whatever point of view they might hold.

In fact, I note that you did exactly that earlier in this thread. So you'll have to forgive me if I'm not convinced that ISPA publishing its rulings is in any way going to convince you that it is carrying out its function. Based on your earlier comments on WASPA, the evidence is actually that the exact opposite is true...
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By seeing the reports and who they are about, we would pick up on repeat offenders, as we do with WASPA. Perhaps ISPA doesn't want that. I don't think we need to see so far back.

I see no problem is comparing the two, since they have points of similarity - apart from sharing a contact point (and prior, even a phone number).

The ASASA site also lists past judgements, so perhaps ISPA is out of step.
 
MagicDude4Eva said:
I think piracy via Usenet servers is higher than anything. Ask your ISP members what the highest traffic protocol on their network is and they will tell you it is usenet traffic.
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Nope. Unless I'm horribly misinformed (which is possible, I admit), that would be peer-to-peer traffic.

Surely the above should be in your interest to protect your members as they are undoubtedly host illegal content and also are the party which distributes that content. Some ISPs even proudly advertise their long retention periods and others turn a blind eye on their customers hosting such content.

So it is knowingly participating in a number of criminal acts - not so?
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Not so. Quoting from ECTA:

78. (1) When providing the services contemplated in this Chapter there is no general obligation on a service provider to—
(a) monitor the data which it transmits or stores; or
(b) actively seek facts or circumstances indicating an unlawful activity.

So ISPs do not have to review the contents of Usenet news servers to look for potentially illegal content. They only have have to react if they are targeted by a valid Take-Down Notice. There is also absolutely no legal precedent in South Africa indicating that an ISP operating a Usenet news server is participating in a crime (even if there is a chance that some of the content on that server may be illegal), or that an ISP with a customer hosting illegal content is in any way responsible for that actions of that customer.

But legal requirements aside, does anybody really want ISPs to start playing the role of policeman and monitoring their networks checking for potentially illegal content? That's an extremely dangerous slippery slope. Why stop at Usenet news? Why not expect ISPs to disconnect users who are accused by copyright holders of pirating content via peer-to-peer? Why not require ISPs to monitor email passing over their networks to look for email messages that might constitute harassment, or which are libelous, or which might indicate terrorist activities?

My personal view is that ISPs should stay completely out of the business of deciding what constitutes illegal content. ISPs certainly have a role to play if a competent legal authority determines that content on their network is problematic, and needs to be removed. But that's very different from expecting ISPs to actively monitor content that they, or their customers, host.
 
Taranis said:
By seeing the reports and who they are about, we would pick up on repeat offenders, as we do with WASPA. Perhaps ISPA doesn't want that. I don't think we need to see so far back.

I see no problem is comparing the two, since they have points of similarity - apart from sharing a contact point (and prior, even a phone number).

The ASASA site also lists past judgements, so perhaps ISPA is out of step.
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Actually, ASASA only make their most recent 20 cases available to the public. If you want access to more than that, you have to pay an annual subscription fee of R2500.

ISPA has debated whether or not to publish its adjudications a number of times previously. The biggest problem is that unlike ASASA or WASPA, ISPA deals with so few complaints each year that publishing, say, the last two year's worth of rulings wouldn't really give a useful sample for anyone to analyze. And while I wouldn't rule out ISPA changing its mind on this issue in the future, I also wouldn't hold my breath. Personally, I'm generally a fan of erring on the side of transparency, but there's not a lot of actual evidence that making such rulings public is helpful.
 
Ant_Brooks said:
Actually, ASASA only make their most recent 20 cases available to the public. If you want access to more than that, you have to pay an annual subscription fee of R2500.

ISPA has debated whether or not to publish its adjudications a number of times previously. The biggest problem is that unlike ASASA or WASPA, ISPA deals with so few complaints each year that publishing, say, the last two year's worth of rulings wouldn't really give a useful sample for anyone to analyze. And while I wouldn't rule out ISPA changing its mind on this issue in the future, I also wouldn't hold my breath. Personally, I'm generally a fan of erring on the side of transparency, but there's not a lot of actual evidence that making such rulings public is helpful.
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SAFLII ...
Water Tribunal etc ... are on SAFLII

The case for making the judgments publicly available in my mind goes a lot further than simply being helpful to the public. It is more important from a perspective of making the adjudication process accountable and transparent
 
With regards to ECTA 78 - remember it is the ISPs creating a mirror of news servers including the replication of the binary newsgroups which are used for the transfer of illegal content.

I can not believe that ISPs are not aware of this as it is a common use case across many high bandwidth users. ISPs knowingly provide those services and go as far as QoSing news server ports because of exactly this reason.
 
just remember though that the replicated newsgroup server still operates on the assumption of the legality of content. How ECTA take down procedure would operate is a little messy if the replication process doesn't provide the local mirror with the technical means to effect removal on delivery of content on receipt of an ECTA complaint notice. My understanding is that the mirroring partner in SA jurisdiction would be obligated to take the administrative steps to cause removal - sending an instruction to the originating host.
 
Paul Hjul said:
just remember though that the replicated newsgroup server still operates on the assumption of the legality of content. How ECTA take down procedure would operate is a little messy if the replication process doesn't provide the local mirror with the technical means to effect removal on delivery of content on receipt of an ECTA complaint notice. My understanding is that the mirroring partner in SA jurisdiction would be obligated to take the administrative steps to cause removal - sending an instruction to the originating host.
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It can be done, but I doubt a SA court will be able to use ECTA or any other existing law to shut such activity down. I know that the Germany anti-piracy group GEMA managed to shut down a number of usenet providers a few months back and this was a lengthy struggle over almost 5 years. I guess my biggest gripe is that in recent news ECTA is "hailed" as the instrument to curb piracy, although everyone knows that ECTA was never instrumental in any of those "convictions".
 
that is because the "anti-piracy" brigade are a bunch of FUD spewers
 
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