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UPDATE/NOTE: Since today's column was first published
this morning, Xtra have obviously taken onboard the suggestions I made (below) and revised
their Service Terms to tone down and qualify exactly what they intend to do with their
customers' intellectual property.
Fortunately I was smart enough to get a screendump of the original webpage
so you can view both and compare them.
However, it's kind of sad that the high-powered corporate lawyers of a
half-billion dollar a year company need to have their backsides kicked
by a mere industry commentator before they do their job properly isn't it?
This story
appeared in the NZ Herald last week and showed how (in)valuable the Net
can be to the film and other creative industries now that many off-shore productions are being
shot here.
It's amazing isn't it?
A day's filming can be fired back to the USA over a high-speed internet
connection in just an hour or two. There, the rest of the production crew
can set to prodding, poking, editing and doing whatever else it takes to
turn raw footage into the polished scenes we see at the movie theatre.
What could possibly go wrong?
The Aardvark PC-Based Digital
Entertainment Centre Project
Yes, at last, this feature
has been updated again! (31 Mar 2003)
The answer is "a hell of a lot" if the movie companies have chosen to use
Xtra as their ISP; and it's all thanks to a little clause in the Telecom subsidiary's new
Service Terms.
What's Yours Is Now Xtra's Too
According to this clause, all customers (including movie companies) who (or whose local production
partners) use Xtra to shuffle their intellectual property (IP) about will discover
that they're granting the ISP a "perpetual, royalty-free, non-exclusive,
irrevocable, unrestricted, worldwide licence" to "use, copy, sublicence,
redistribute, adapt, transmit, publish, delete, edit and/or broadcast, publicly
perform or display" that material.
And have you seen that TV ad where a group of musicians use Telecom's high-speed
Internet services to send music around the world? If the scenes depicted were
real and they did this through Xtra, the ISP would now have a full right to do
almost anything it wants with that music -- including broadcasting it, selling it or
even giving it away -- with no payment to the artists involved.
If you don't believe me, just check
Section 4
under the heading
Our use of your intellectual property (screendump)
Yes, that's right -- if you use Xtra as your ISP, they can take any or all
of the IP you send through their network and effectively do whatever they
want with it (including earn a whole lot of money) -- without requesting
your further permission, without advising you of their actions and without
paying you a solitary cent for the privilege.
The first key phrase used is "By placing any content, software or anything else ("Materials")
on our Websites or Systems".
That word "Systems" has an awfully broad scope and could be applied to
every part of Xtra's network.
For example, Xtra's mailserver
is one of their "Systems" so if the strict letter of this agreement were to be
upheld, Xtra gains a license to use all the email and any attachments you send.
Then there's the bit that says "including posting messages, uploading files, importing data
or engaging in any other form of communication" -- which really covers
just about anything you can do on the Net.
And it's not just copyrighted material that's included in Xtra's IP-grab...
Section 4 goes on to say that by placing any material on an Xtra
[mailserver, proxy, cache, nttp spool or whatever] "System" you're giving granting them "the right to exploit all
proprietary rights in any of the Materials including, but not
limited to, rights under copyright, trade mark, service mark or
patent laws under any jurisdiction worldwide"
So if you're an inventor and you send all or part a of a patent application to
a colleague, partner or The IP Office of NZ
using email or other Net-based communications methods that involve uploading
the data to one of Xtra's "Systems" then you've just
granted them the right to freely "exploit" that information for whatever purpose they
see fit -- and that could include granting sublicenses to your competitors.
Now this is patently (groan!) ridiculous isn't it?
There are some other service providers have similar terms of service but even the likes of
Yahoo *liberally* include the qualifying phrase "solely for the purpose for
which such Content was submitted" in the relevant clauses (see section 8 of
Yahoo's TOS).
I can only think of three possible reasons why Xtra would include such
a blatantly unqualified and outlandish clause in its service terms:
- They really do want to "exploit" their customers' IP without
any restriction and they realise that this could have enormous commercial
potential as another revenue stream.
- Their lawyers are a bunch of idiots who ought to be disbarred for
incompetence and have all their crayons confiscated for fear they'll
start scribbling on the wallpaper.
- The rogue Xtra tea-lady, whose incredibly stupid misdeeds
I've mentioned
in previous columns, has hacked her way into Xtra's website and is playing a
late April Fool's joke on all of us.
Now I wonder which it is? Anyone care to hazard a guess?
Xtra Now Too Expensive For My Taste
As an author, writer, publisher and inventor, I have to say that unless they
hire some real lawyers and revise section 4, I'll have no option but to cancel
my Xtra account. It would be economic
suicide for me to do otherwise. I can't afford to give away irrevocable,
royalty-free licenses and sublicenses to anyone! Who can?
Wait for the Excuses
I have no doubt that right now the boys at Xtra are preparing a response that
goes something like this:
"It is not our intention to gain unfair benefit from the intellectual
property of our customers. The purpose of this clause was to simply protect
us from claims of copyright, trademark or patent infringement where a
customer publishes material on our website(s)"
To which my response would be: then why don't your Service Terms say
this instead of making the outrageous demands they presently do?
Why doesn't Xtra qualify this portion of its Service Terms by using the words "solely for
the purpose for which such Content was submitted"???? Without such a
qualification, the only logical conclusion
that can be drawn is that Xtra actually intends to repurpose
customers' IP and make money from it.
To be fair, the *intent* of this clause is probably quite reasonable but
the way it is worded means that it actually has an infinitely wider scope
than is necessary just to provide the necessary protection (who's been
drawing on the walls with their crayons when they should have been checking
this document???)
To fix this mess, the word "Systems" ought to be struck from section 4
and a tighter definition provided. Likewise, that phrase "solely for the
purpose for which such Content was submitted" must be added to give
protection against Xtra repurposing their customers' data for their own profit.
We all know that today's column is a totally "over the top" reaction to
a simple clerical oversight. After all, Telecom/Xtra would never enforce the *letter*
of this clause as it stands -- any more than they'd force all ISPs to
use an alternative numbering system when providing dial-up access or attempt
to shirk their obligations under the Kiwi Share (oops, forget I said that).
Coincidence or Cunning Plan?
Is it mere coincidence that this IP-grab clause appears in Xtras Service Terms
at almost exactly the same time that Telecom tries to convince the movie industry
to use its services and launches a very expensive TV ad campaign promoting the
use of Jetstream by successful musicians? Of course it is -- I mean, what
else could it be???
Other ISPs
It wouldn't be fair to single-out Xtra if other local ISPs had similar
clauses in their terms of service would it -- so I went looking.
A quick check of several other Kiwi ISPs' terms of service show none of this avarice,
incompetence or stupidity.
(Here are links to the relevant pages at Ihug,
Clear.net.nz,
Paradise/TelstraClear,
Quik Internet,
Orcon Internet)
If these ISPs are able to offer Net access, web hosting, newsgroup access,
email and the like, without demanding irrevocable, royalty-free commercial
rights to use their customers' IP for any purpose they choose, one can't help
but wonder why Xtra can't do the same.
Watch The Exodus
I'm afraid Xtra's greed and/or stupidity is showing and I expect that any
of their customers (especially those in the film or music industries) with IP
to protect will be dropping Xtra like a hot potato unless this
clause is reworked pretty damned smartly..
I also suspect that Web designers using Xtra for access or
hosting
might also be few and far between by the end of the week.
After all, there is no shortage of good, *fair*, and honest ISPs out there
who don't demand you give them unlimited royalty-free use of what may be
your most valuable business asset as a condition of providing service.
Alternative Perspectives and Opinions
As always, Aardvark's "Right of Reply" is open to Xtra if they wish to
explain themselves regarding this matter. Just use contact
form and be sure and choose "for publication".
And of course if any Aardvark readers have an opinion on today's column or
want to add something you're also invited to chip in and
have your say.
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