Xtra! Xtra! NZCS to debate ISP contract

Dismay at Xtra's newly introduced terms of service will be aired at a meeting of the Computer Society in Auckland tomorrow.

Dismay at Xtra’s newly introduced terms of service will be aired at a meeting of the Computer Society in Auckland tomorrow.

NZCS Auckland board member Ian Mitchell describes Xtra’s new terms as “totally unreasonable”, representing a “serious mindset problem” within the Telecom-owned ISP.

“The first draft of the terms were draconian, were completely confusing and need to be addressed.”

Xtra introduced a clause on April 4 which many users took to mean the ISP would take co-ownership of all material that passes over its network. It has since amended the clause to specifically rule out such ownership, saying the intention is to allow Xtra the right to move content around as part of normal network management. (See Xtra backtracks on changes to terms and conditions and Another clause for concern with Xtra's terms and conditions.)

The bungled effort at changing its terms and conditions illustrates how the law isn’t keeping up with technology, according to digital content creator Dean Lyon.

Lyon’s Wellington-based company, Oktobor, specialises in transferring large multimedia files up and down the country and around the world. Safeguarding content copyright is fundamental to the business.

Lyon says when Xtra subscribers were first notified of the new terms, musician friends were immediately up in arms.

“These are the people featuring in Telecom’s ads showing musicians collaborating remotely using its network,” Lyon says.

He immediately forwarded a copy of the contentious Xtra clause to contacts within Trade NZ and Industry NZ, whom he says were aghast.

“It comes back to this whole idea of using broadband to reach out to the world,” Lyon says, which the government’s business support agencies are encouraging.

Auckland barrister Clive Elliott, who will address the NZCS meeting, says the manner in which Xtra has gone about making the change is an issue in itself.

“I’m an Xtra user and I was unaware that these conditions had changed. That alone needs addressing. A contractual arrangement must be between consensual parties and I would say I have not given my consent to this.”

Elliott says the two clauses in question, three and four, are broad in their reach and that clause three, which allows Xtra to block, edit or delete material it deems objectionable, goes beyond what is acceptable.

“It’s one thing to block something that’s unlawful, and Xtra has a duty to do that, but it’s something else to talk about what’s appropriate. Who gets to decide that?”

Elliott is also concerned by the clause’s inclusion of content that may be “detrimental to [Xtra’s] reputation or ... brand”.

“That’s seemingly a restriction on free speech or free expression.”

The editor of the Scoop online news portal, Alistair Thompson, also objects to that clause.

“Even if it only applies to the portal, as the Xtra spokeswoman says, that means that XtraMSN won’t be able to criticise the country’s largest telecommunications company. They might as well have a disclaimer at the top saying ‘this is Telecom-organised propaganda’.”

Thompson says he doesn’t believe Xtra has the technology to monitor all communication that passes across its network, and that means this clause will only be applied in certain circumstances.

“We can safely assume that those clauses will be applied selectively and arbitrarily by management to punish those people they regard as criticising them.”

Elliott hopes the NZCS meeting, which he would like Xtra representatives to attend, will lead to a re-working of the terms and conditions.

“You have to question whether the terms need to be so broad. They should be differentiating between the types of services they offer rather than trying to have one generic catch-all set of terms for all.”

The NZCS meeting will be held at the Peace Software building, 100 Symonds Street, Auckland, from 6pm tomorrow.

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