In attempting to protect itself, Xtra may have actually increased its exposure to prosecution by relinquishing its status and rights as a carrier.

Xtra has notified some customers of the change in its terms and conditions -- but do they realise what a pandora's box they've opened with this one?

In its email, Xtra says:
"In order to perform its services, Xtra must have the express right to deal with this content once it enters its networks and servers.

If Xtra didn't have the right to deal with such content, it could be in breach of the original content owners intellectual property rights."

Now someone correct me if I'm wrong but I believe that "carriers" (organisations such as telcos, the NZ Post Office, etc) are automatically indemnified against breaches of copyright, trademark, etc when they are simply acting as a delivery conduit for their client's information.

Obviously it would be ludicrous to expect NZ Post to be held accountable if someone sends a letter containing drugs or child porn, and likewise you couldn't expect Telecom to carry the can when someone uses their phone to commit credit card fraud or whatever.

"Carrier" status acknowledges that a telco, postal service, courier or whatever, can't reasonably be expected to know what customers are sending and therefore they can't be responsible if that material is deemed illegal.

However -- it seems that Xtra is now saying "we aren't a carrier so we need special permission from our customers to transmit their intellectual property"

Do they realise that if they deny "carrier" status then they're actually saying we no longer qualify for indemnity against the potential illegal acts of our customers?

This could well mean that all those warez, pirated music and that porn which flows through their "systems" is now their legal responsibility and potentially sees them in blatant breach of numerous censorship, copyright and other laws.

After all, they may have an agreement with the sender -- what about stuff that is coming onto their "systems" from other networks? They have no such agreement with the sender but now they're saying "we're not a carrier" they *are* likely responsible for any infringements such material may represent.

Is it back to the drawing board for Xtra's tea-lady?

My Advice
What Xtra needs to do is differentiate between its ISP (access) functions/services and its publishing services (BBSs, chat rooms, etc).

These are two very different operations that require very different approaches to how a customer's IP is handled.

When a customer buys internet access, Xtra needs to provide service as a carrier so that it is indemnified against liability for any illegal content or activities in which customers may send, receive or engage in. Thanks to the protection afforded by "carrier" status, there's no need for Xtra to demand any form of licence for a customer's IP so that problem is eliminated and Xtra's ISP customers can go about their business without worring about what Xtra *might* do with their property.

However, access to the chat rooms, communities, bulletin boards, etc., should be subject to a completely separate click-through TOS that applies not only to Xtra customers but also to people from outside the network who happen to visit. It is only this type of publicly published material that requires the extra protection provided by the licencing agreement currently proposed in Xtra's Service Terms.

Back to Aardvark