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The information on this site attracts a modest, but credible number of visitors and its popularity clearly provides Maggiebee with a measure of satisfaction.

Over the past few years, Maggiebee has invested many long hours of effort in creating and publishing her own unique content through the site.

Maggiebee uses Xtra as her ISP and she told Aardvark that a few years ago they contacted her to discuss the prospect of linking to her site from their own. Flattered, and keen to gather a few more hits, she was happy to have NZ's largest ISP driving traffic to her site.

Since this was seemingly just an "agreement to link", it was not surprising that there was no formal written contract involved. After all, millions of websites all around the world agree to link to one another every day without the need for such paperwork.

However, this is not where the story ends...

It turns out that, somewhere along the line, rather than just linking to her pages, Xtra began copying and republishing Maggiebee's content on its own site in what would appear to be a blatant breach of copyright.

At this stage it should be noted that Maggiebee is not a professional web designer and therefore was not aware that her content was actually being republished rather than simply framed or linked to. It was only recently, when she inspected her server logs and found virtually no referrals from Xtra's site, that she checked up and discovered what she considered to be unauthorised republication taking place.

Aardvark has seen screenshots taken from the Xtra website which clearly show Maggiebee's content being republished as an integral part of Xtra's own pages (with their revenue-earning banner ads) and not simply linked or framed.

UPDATE: Alastair from Scoop has informed me that a cached copy of an infringing Xtra webpage can be found found here. Compare it to this page (Screendump) on Maggiebee's site.

Readers Say (updated irregularly) Nothing Yet Have Your Say

The first thing that occurred to me was that maybe this was all just a simple misunderstanding. Perhaps Maggiebee was confused and had unknowingly granted Xtra the right to republish rather than link.

With this in mind I checked with two other content creators who had regularly provided Xtra with material for its website. In both cases the publication agreements were strictly documented by weighty written contracts, and this appears to be standard policy for all third-party content providers to the Xtra/XtraMSN website.

What's more, under the terms of these contracts, the other content providers are required to deliver their material directly to Xtra -- it is not standard practice to covertly harvest material directly from other websites as it was done in Maggiebee's case.

Surely if Xtra had originally sought Maggiebee's permission to republish content from her website, she'd have been asked to sign the standard written content agreement. Maggiebee says no such document was ever presented to her for signing and Xtra have not offered Aardvark any evidence that they had her permission to republish.

However, as if to try and cover themselves, Xtra has now come up with a comprehensive nine-page "Content Licencing Agreement" which they're asking Maggiebee to sign.

And guess how much they're offering in this proposed agreement by way of compensation for all this content that they deemed valuable enough to have been republishing on their own pages for perhaps as long as two years or more. Content that has been boldly supported by revenue-generating banner ads...

Not a penny! That's right - zilch, nix, nyada, nil, nothing.

According to the proposed agreement, the sole consideration being offered in return for years worth of content and the ongoing provision thereof is an offer to "place the Content Provider's URL on the XtraMSN Site".

On Thursday morning I contacted Xtra to get their perspective on this matter.

Naturally, in an attempt to be fair and objective, I wanted to give the ISP a chance to put their case and present evidence that they weren't pirating a customer's content without permission.

Perhaps it was coincidence, but within minutes of my request for comment, Maggiebee had received a call from Xtra asking how they could sort out the issue and "improve the relationship".

As I suspected they would, Xtra responded to my request for comment by claiming that they have been republishing the content in question with the permission of Maggiebee but carefully avoided responding directly to my request for any type of documentary evidence that such an agreement existed.

In an email to Aardvark, Xtra's Public Affairs Specialist Anna Kermode said "While it would be inappropriate to go into the detail of a commercial arrangement with one of our suppliers, I can assure you this has been with Maggie's permission and is supported by our email communications with her."

Who's telling the truth here? Well until Xtra comes up with the requested proof that they had permission to republish, my money's on Maggiebee. After all, who has the most to gain or lose here?

So, do all those assurances that Xtra trotted out earlier this week when it said that its new Service Terms were not simply an attempt to "exploit" [their word not mine] its customers' intellectual property now have a slightly hollow ring?

Probably not. As the old saying goes, never attribute to malice [or avarice] that which can be adequately explained by incompetence.

Perhaps there was a simple mis-understanding at the time the initial agreement between the two parties was forged -- but if a republishing deal was struck, why wasn't it formally documented like all the others, and why were Xtra covertly harvesting material directly from Maggiebee's website instead of adopting the same procedures used with its other content providers?

And why would Maggiebee give Xtra the right to republish her content without payment when, at the same time, the ISP was known to be paying other external content providers quite handsome sums?

Finally, why (if they claim to have permission) did Xtra suddenly pull all Maggiebee's content from their website when the the republication was noticed?

If Xtra can provide the requested documentary evidence to prove that they had indeed secured a right to republish then I will be more than happy to update this story accordingly. Until then, readers are left to weigh-up the evidence and draw their own conclusions.

One thing's for sure, customers and shareholders should be very worried by Xtra's seemingly shambolic attitude to drafting, presenting and implementing critical legal documents and agreements. The current level of competence falls far short of what one would expect from the country's largest and best resourced ISP.

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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