Precarious position of ISP's re copyright

Discussion in 'NZ Computing' started by Brendan, Feb 6, 2008.

  1. Brendan

    Brendan Guest

    I like to draw some comment on the following observation:

    Some ISP's in NZ have taken to recognising complaints from overseas
    organisations such as the RIAA and MPAA, and penalising their customers for
    allegedly breaking the copyright laws.

    Leaving aside the hypocrisy of such organisations for the moment, what
    happens when said customer responds in Court?

    Specifically, the ISP is exposed to Defamation actions by the customer, and
    possibly loses to the customer and breach of contract.



    How?

    1. The customer is legally innocent until PROVEN guilty in a New Zealand
    COURT OF LAW. Complaints are irrelevant - overseas or local - UNTIL THEN.

    2. UNTIL THEN, the customer may sue the ISP for defamation.

    For the MPAA etc, this is perfect. The ISP is the one taking all the risks,
    the costs to the MPAA are zero - fostering the practice of speculative
    threats. The perfect storm - for the MPAA.

    So why does the ISP do it? I don't know. Stupidity likely. Maybe they are
    scared a big nasty company will come to New Zealand and sue them.

    The only advice I could give in that case is, if they feel so strongly that
    a customer is going to get them sued, they will have to take the customer
    to Court themselves under the provisions of the contract. They'll need
    evidence of course - which is exceedingly difficult [#1].

    Generally I think the best response to such as the MPAA etc by the ISP is
    "please forward a relevant Court Order from a New Zealand Court and we will
    proceed". This protects them against liability to the customer, protects
    the customer from especially egregious abuses, and lets the MPAA know we
    are not a nation of hicks.

    Given the difficulty for the MPAA and the growing reputation they have for
    threats-as-revenue-gathering, they would be concerned an actual Hearing
    would set a precedent they are not happy with so are not keen to do it.

    #1: recording a customers activity on the Net would be a breach of the
    Privacy Act and illegal, rendering any evidence so gathered as
    in-admissible.

    --

    .... Brendan

    #99835 +(8800)- [X]

    <Guo_Si> Hey, you know what sucks?
    <TheXPhial> vaccuums
    <Guo_Si> Hey, you know what sucks in a metaphorical sense?
    <TheXPhial> black holes
    <Guo_Si> Hey, you know what just isn't cool?
    <TheXPhial> lava?


    Note: All my comments are copyright 6/02/2008 12:35:21 p.m. and are opinion only where not otherwise stated and always "to the best of my recollection". www.computerman.orcon.net.nz.
     
    Brendan, Feb 6, 2008
    #1
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  2. Brendan

    Puddle Guest

    Brendan wrote:
    > I like to draw some comment on the following observation:
    >
    > Some ISP's in NZ have taken to recognising complaints from overseas
    > organisations such as the RIAA and MPAA, and penalising their customers for
    > allegedly breaking the copyright laws.


    Just curious as to which ISP's are doing this in NZ?


    >
    > Leaving aside the hypocrisy of such organisations for the moment, what
    > happens when said customer responds in Court?
    >
    > Specifically, the ISP is exposed to Defamation actions by the customer, and
    > possibly loses to the customer and breach of contract.
    >
    >
    >
    > How?
    >
    > 1. The customer is legally innocent until PROVEN guilty in a New Zealand
    > COURT OF LAW. Complaints are irrelevant - overseas or local - UNTIL THEN.
    >
    > 2. UNTIL THEN, the customer may sue the ISP for defamation.
    >
    > For the MPAA etc, this is perfect. The ISP is the one taking all the risks,
    > the costs to the MPAA are zero - fostering the practice of speculative
    > threats. The perfect storm - for the MPAA.
    >
    > So why does the ISP do it? I don't know. Stupidity likely. Maybe they are
    > scared a big nasty company will come to New Zealand and sue them.
    >
    > The only advice I could give in that case is, if they feel so strongly that
    > a customer is going to get them sued, they will have to take the customer
    > to Court themselves under the provisions of the contract. They'll need
    > evidence of course - which is exceedingly difficult [#1].
    >
    > Generally I think the best response to such as the MPAA etc by the ISP is
    > "please forward a relevant Court Order from a New Zealand Court and we will
    > proceed". This protects them against liability to the customer, protects
    > the customer from especially egregious abuses, and lets the MPAA know we
    > are not a nation of hicks.
    >
    > Given the difficulty for the MPAA and the growing reputation they have for
    > threats-as-revenue-gathering, they would be concerned an actual Hearing
    > would set a precedent they are not happy with so are not keen to do it.
    >
    > #1: recording a customers activity on the Net would be a breach of the
    > Privacy Act and illegal, rendering any evidence so gathered as
    > in-admissible.
    >
     
    Puddle, Feb 6, 2008
    #2
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  3. Brendan

    Brendan Guest

    On Wed, 06 Feb 2008 20:04:17 +1300, Puddle wrote:

    > Brendan wrote:
    >> I like to draw some comment on the following observation:
    >>
    >> Some ISP's in NZ have taken to recognising complaints from overseas
    >> organisations such as the RIAA and MPAA, and penalising their customers for
    >> allegedly breaking the copyright laws.

    >
    > Just curious as to which ISP's are doing this in NZ?


    I have heard that xnet is doing this, and possibly others. Apparently they
    have sent such warnings to customers, and/or cut off their internet
    connection and so on. Saw it mentioned on geekzone a while ago.

    A risky business, this punishing paying customers for crimes they have not
    been found guilty of...

    And foolish in the extreme to be doing it at the behest of some overseas
    organisation of dubious repute and motive.

    Maybe they will do it to some retired lawyer who will sue them for
    thousands and that will be the end to this guilty-without-trial mentality.

    Anyway my purpose wasn't to 'out' the isp's - more to receive feedback on
    such cases as experienced by posters here.

    --

    .... Brendan

    #368808 +(4460)- [X]

    <@David> Yay I get laid today! Been a month.... needing it by now
    <@Sony> ...........
    <@Sony> TMI TMI TMI
    <@David> Only a few hundred pounds but its better than nothing
    <Malpine> Thanks for the info
    <@David> eh?
    <@David> damn i meant PAID
    <@David> I get PAID today
    <@David> dammit


    Note: All my comments are copyright 6/02/2008 8:06:30 p.m. and are opinion only where not otherwise stated and always "to the best of my recollection". www.computerman.orcon.net.nz.
     
    Brendan, Feb 6, 2008
    #3
  4. Brendan

    NR Guest

    On Feb 6, 8:11 pm, Brendan <> wrote:
    > On Wed, 06 Feb 2008 20:04:17 +1300, Puddle wrote:
    > > Brendan wrote:
    > >> I like to draw some comment on the following observation:

    >
    > >> Some ISP's in NZ have taken to recognising complaints from overseas
    > >> organisations such as the RIAA and MPAA, and penalising their customers for
    > >> allegedly breaking the copyright laws.

    >
    > > Just curious as to which ISP's are doing this in NZ?

    >
    > I have heard that xnet is doing this, and possibly others. Apparently they
    > have sent such warnings to customers, and/or cut off their internet
    > connection and so on. Saw it mentioned on geekzone a while ago.
    >
    > A risky business, this punishing paying customers for crimes they have not
    > been found guilty of...
    >



    Who mentioned crime?
     
    NR, Feb 7, 2008
    #4
  5. Brendan

    thingy Guest

    Brendan wrote:
    > I like to draw some comment on the following observation:
    >
    > Some ISP's in NZ have taken to recognising complaints from overseas
    > organisations such as the RIAA and MPAA, and penalising their customers for
    > allegedly breaking the copyright laws.
    >
    > Leaving aside the hypocrisy of such organisations for the moment, what
    > happens when said customer responds in Court?
    >
    > Specifically, the ISP is exposed to Defamation actions by the customer, and
    > possibly loses to the customer and breach of contract.


    If you look at typical terms and conditions an ISP pretty much does not
    have to give a reason to terminate you, they just can. To have a
    "Defamation action" I would think the ISP would have to publically
    accuess you of mis-dead...if they just terminate your service there
    would not be much you can do bar going to Infotech (or a similar paper)
    they just give you 1 month's notice and your dead....

    About the only practical option you have is to move ISPs, trouble is
    they are all pretty awful.

    regards

    Thing
     
    thingy, Feb 7, 2008
    #5
  6. Brendan

    Brendan Guest

    On Thu, 07 Feb 2008 14:55:05 +1300, thingy wrote:

    >> Specifically, the ISP is exposed to Defamation actions by the customer,
    >> and possibly loses to the customer and breach of contract.

    >
    > If you look at typical terms and conditions an ISP pretty much does not
    > have to give a reason to terminate you, they just can.


    There are several responses to that tactic, should it be taken.

    1. A contract that is overly weighted in favor of the ISP may be ruled
    unfair by the Court.

    2. A termination without explanation could be challenged in Court as a
    breach of contract. The customer could sue for any losses and expenses.

    3. A termination WITH explanation is tricky: anything less than complete
    proof could generate a Defamation action.

    4. The Consumer Guarantee's Act may also play a role in regards to both
    the reasonable expectations of customary service, and in regards to
    convoluted or tortuous Contract.

    I guess we will have to wait for them to do it to some wealthy person with
    a point to make, or a retired lawyer etc. to know for sure.

    Never the less, it's a stupid risk for an ISP to take on behalf of an
    increasingly disreputable overseas organisation. The ISP gains ZERO
    benefit from it.

    > To have a "Defamation action" I would think the ISP would have to
    > publically accuess you of mis-dead...


    No, I think the Defamation Act is broader than that. I think that taking
    action against a customer based on accusations could be tested under the
    Defamation Act.

    Certainly the Contracts Act.

    > if they just terminate your service there would not be much you can do
    > bar going to Infotech (or a similar paper) they just give you 1 month's
    > notice and your dead....


    Many times ISP's in this country (notably IHUG and Xtra...) have been
    found guilty in court.

    It seems the presumption of immunity some of them still possess may be
    highly over estimated.

    > About the only practical option you have is to move ISPs, trouble is they
    > are all pretty awful.


    Yes, they are.

    I have been quite happy with xnet however, but I do wish that these
    companies had more of a backbone where it comes to these overseas
    organisations.

    These organisations have found it very profitable to fire off threats on
    the flimsiest of evidence, by the thousands. They essentially "spam" ISP's
    and consumers with them.

    I'd like it to become unprofitable for them.

    --

    .... Brendan

    #98450 +(3833)- [X]

    Jakefeb3: do you know a turtles only weakness?
    AvatarOfSolusek: no
    AvatarOfSolusek: well
    AvatarOfSolusek: thier slowness
    Jakefeb3: there weakness is they cant roll over when they are on their
    backs
    AvatarOfSolusek: lol
    Jakefeb3: now i have a plan
    Jakefeb3: if i duck tape 2 turtles together they are unstoppable


    Note: All my comments are copyright 7/02/2008 9:33:44 p.m. and are opinion only where not otherwise stated and always "to the best of my recollection". www.computerman.orcon.net.nz.
     
    Brendan, Feb 7, 2008
    #6
  7. Brendan

    impossible Guest

    "Brendan" <> wrote in message
    news:...
    > On Thu, 07 Feb 2008 14:55:05 +1300, thingy wrote:
    >
    >>> Specifically, the ISP is exposed to Defamation actions by the customer,
    >>> and possibly loses to the customer and breach of contract.

    >>
    >> If you look at typical terms and conditions an ISP pretty much does not
    >> have to give a reason to terminate you, they just can.

    >
    > There are several responses to that tactic, should it be taken.
    >
    > 1. A contract that is overly weighted in favor of the ISP may be ruled
    > unfair by the Court.
    >


    Not unless there's evidence of fraud or coercion. If the T&C is clearly
    specified, if acceptance of the T&C is an explicit condition of the
    contract, and if the contract is entered into willingly, then the legal
    presumption is that the contract is fair.

    > 2. A termination without explanation could be challenged in Court as a
    > breach of contract. The customer could sue for any losses and expenses.
    >


    Not a chance. Take, for example, this clause in ther Xnet T&C, which is
    hardly atypical:

    "You agree to indemnify, defend and hold harmless WorldxChange
    Communications all claims and resulting from you engaging in any of the
    prohibited activities listed in this Policy or resulting from your violation
    of any other posted WorldxChange Communications policy. Your indemnification
    will survive any termination of the relationship."

    Sign off on that and you've given the ISP carte blanche.

    > 3. A termination WITH explanation is tricky: anything less than complete
    > proof could generate a Defamation action.
    >


    Unless the ISP communicates an alleged violation of the T&C to some third
    party, there's no legal basis at all for a claim of defamation. But even
    assuming this happended (and it wasn't the customer who went off on a rant
    in nz.comp first), the burden of proof would then be on the person suing the
    ISP to show that this third-party communication was undertaken in bad faith,
    with reasonable knowledge that the alleged violation never in fact happened.

    > 4. The Consumer Guarantee's Act may also play a role in regards to both
    > the reasonable expectations of customary service, and in regards to
    > convoluted or tortuous Contract.
    >


    Got a precedent for that heroic interpretation of the CGA?

    > I guess we will have to wait for them to do it to some wealthy person with
    > a point to make, or a retired lawyer etc. to know for sure.
    >
    > Never the less, it's a stupid risk for an ISP to take on behalf of an
    > increasingly disreputable overseas organisation. The ISP gains ZERO
    > benefit from it.
    >


    >> To have a "Defamation action" I would think the ISP would have to
    >> publically accuess you of mis-dead...

    >
    > No, I think the Defamation Act is broader than that. I think that taking
    > action against a customer based on accusations could be tested under the
    > Defamation Act.
    >
    > Certainly the Contracts Act.
    >


    Certainly? See above. I'd consider it a huge longshot.

    >> if they just terminate your service there would not be much you can do
    >> bar going to Infotech (or a similar paper) they just give you 1 month's
    >> notice and your dead....

    >
    > Many times ISP's in this country (notably IHUG and Xtra...) have been
    > found guilty in court.
    >


    Guilt of defaming customers? I don't think so. Annoying them to death, yes.
    But defaming them?!?


    > It seems the presumption of immunity some of them still possess may be
    > highly over estimated.
    >
    >> About the only practical option you have is to move ISPs, trouble is they
    >> are all pretty awful.

    >
    > Yes, they are.
    >
    > I have been quite happy with xnet however, but I do wish that these
    > companies had more of a backbone where it comes to these overseas
    > organisations.
    >


    You really should read Xnet's T&C...

    http://www.xnet.co.nz/legal/terms.shtml

    When it comes to their prohibitions on the dissemination of "objectionable,
    offensive, indecent, pornographic, harassing, threatening, embarrassing,
    distressing, vulgar, hateful, racially or ethnically offensive, or otherwise
    inappropriate", there's no need to look overseas for someone to blame. There
    are plenty of small-minded people at home with an interest in "cleaning up"
    the web.

    > These organisations have found it very profitable to fire off threats on
    > the flimsiest of evidence, by the thousands. They essentially "spam" ISP's
    > and consumers with them.
    >
    > I'd like it to become unprofitable for them.
    >


    Good luck with that.
     
    impossible, Feb 7, 2008
    #7
  8. Brendan

    Richard Guest

    impossible wrote:
    > "Brendan" <> wrote in message
    > news:...
    >> On Thu, 07 Feb 2008 14:55:05 +1300, thingy wrote:
    >>
    >>>> Specifically, the ISP is exposed to Defamation actions by the customer,
    >>>> and possibly loses to the customer and breach of contract.
    >>> If you look at typical terms and conditions an ISP pretty much does not
    >>> have to give a reason to terminate you, they just can.

    >> There are several responses to that tactic, should it be taken.
    >>
    >> 1. A contract that is overly weighted in favor of the ISP may be ruled
    >> unfair by the Court.
    >>

    >
    > Not unless there's evidence of fraud or coercion. If the T&C is clearly
    > specified, if acceptance of the T&C is an explicit condition of the
    > contract, and if the contract is entered into willingly, then the legal
    > presumption is that the contract is fair.
    >
    >> 2. A termination without explanation could be challenged in Court as a
    >> breach of contract. The customer could sue for any losses and expenses.
    >>

    >
    > Not a chance. Take, for example, this clause in ther Xnet T&C, which is
    > hardly atypical:
    >
    > "You agree to indemnify, defend and hold harmless WorldxChange
    > Communications all claims and resulting from you engaging in any of the
    > prohibited activities listed in this Policy or resulting from your violation
    > of any other posted WorldxChange Communications policy. Your indemnification
    > will survive any termination of the relationship."
    >
    > Sign off on that and you've given the ISP carte blanche.
    >
    >> 3. A termination WITH explanation is tricky: anything less than complete
    >> proof could generate a Defamation action.
    >>

    >
    > Unless the ISP communicates an alleged violation of the T&C to some third
    > party, there's no legal basis at all for a claim of defamation. But even
    > assuming this happended (and it wasn't the customer who went off on a rant
    > in nz.comp first), the burden of proof would then be on the person suing the
    > ISP to show that this third-party communication was undertaken in bad faith,
    > with reasonable knowledge that the alleged violation never in fact happened.
    >
    >> 4. The Consumer Guarantee's Act may also play a role in regards to both
    >> the reasonable expectations of customary service, and in regards to
    >> convoluted or tortuous Contract.
    >>

    >
    > Got a precedent for that heroic interpretation of the CGA?
    >
    >> I guess we will have to wait for them to do it to some wealthy person with
    >> a point to make, or a retired lawyer etc. to know for sure.
    >>
    >> Never the less, it's a stupid risk for an ISP to take on behalf of an
    >> increasingly disreputable overseas organisation. The ISP gains ZERO
    >> benefit from it.
    >>

    >
    >>> To have a "Defamation action" I would think the ISP would have to
    >>> publically accuess you of mis-dead...

    >> No, I think the Defamation Act is broader than that. I think that taking
    >> action against a customer based on accusations could be tested under the
    >> Defamation Act.
    >>
    >> Certainly the Contracts Act.
    >>

    >
    > Certainly? See above. I'd consider it a huge longshot.


    Contract law is a black art, and there are so many ways out of them to
    do with good faith and meeting of the minds and crap like that. The
    whole act is a minefield which is why there are specilists in the area.

    > You really should read Xnet's T&C...
    >
    > http://www.xnet.co.nz/legal/terms.shtml
    >
    > When it comes to their prohibitions on the dissemination of "objectionable,
    > offensive, indecent, pornographic, harassing, threatening, embarrassing,
    > distressing, vulgar, hateful, racially or ethnically offensive, or otherwise
    > inappropriate", there's no need to look overseas for someone to blame. There
    > are plenty of small-minded people at home with an interest in "cleaning up"
    > the web.


    Yes, thats true. I would rather the ISP say that you may use it to
    access any content other then stuff that is actually illegal. If someone
    is being harrassed online then the ISP should not be judge/jury/executioner

    >> These organisations have found it very profitable to fire off threats on
    >> the flimsiest of evidence, by the thousands. They essentially "spam" ISP's
    >> and consumers with them.
    >>
    >> I'd like it to become unprofitable for them.
    >>

    >
    > Good luck with that.


    Yeah, emailing is free, and at least in the US with the DMCA its up to
    the ISP to take action to remain non liable, so all they have to do is
    make the customer take too much manpower with requests and the isp will
    get rid of the customer to save labour costs.
     
    Richard, Feb 7, 2008
    #8
  9. Brendan

    thingy Guest

    Brendan wrote:
    > On Thu, 07 Feb 2008 14:55:05 +1300, thingy wrote:
    >
    >>> Specifically, the ISP is exposed to Defamation actions by the customer,
    >>> and possibly loses to the customer and breach of contract.

    >> If you look at typical terms and conditions an ISP pretty much does not
    >> have to give a reason to terminate you, they just can.

    >
    > There are several responses to that tactic, should it be taken.
    >
    > 1. A contract that is overly weighted in favor of the ISP may be ruled
    > unfair by the Court.


    "may be"

    > 2. A termination without explanation could be challenged in Court as a
    > breach of contract. The customer could sue for any losses and expenses.


    A hard one to win IMHO...all the contract has to say is "we can
    terminate with 1 month's notice without explanation." and to be fair to
    a company they should be allowed to terminate a contract if they believe
    it is not reasonable and profitable to them...as a user/consumer we
    certainly can....

    > 3. A termination WITH explanation is tricky: anything less than complete
    > proof could generate a Defamation action.


    exactly...see above....

    > 4. The Consumer Guarantee's Act may also play a role in regards to both
    > the reasonable expectations of customary service, and in regards to
    > convoluted or tortuous Contract.


    I may have to argue this with Clear shortly...given how many get out
    clauses ISPs have on performance and indeed Telco's before them I have
    yet to see anybody get anywhere with them. The Commerce Commission? is
    sueing Xtra over blatant untrue advertising at the moment...which
    suggests a lot of latitude.

    > I guess we will have to wait for them to do it to some wealthy person with
    > a point to make, or a retired lawyer etc. to know for sure.
    >
    > Never the less, it's a stupid risk for an ISP to take on behalf of an
    > increasingly disreputable overseas organisation. The ISP gains ZERO
    > benefit from it.


    The ISP is caught between a rock and a hard place...

    >> To have a "Defamation action" I would think the ISP would have to
    >> publically accuess you of mis-dead...

    >
    > No, I think the Defamation Act is broader than that. I think that taking
    > action against a customer based on accusations could be tested under the
    > Defamation Act.
    >
    > Certainly the Contracts Act.
    >
    >> if they just terminate your service there would not be much you can do
    >> bar going to Infotech (or a similar paper) they just give you 1 month's
    >> notice and your dead....

    >
    > Many times ISP's in this country (notably IHUG and Xtra...) have been
    > found guilty in court.
    >
    > It seems the presumption of immunity some of them still possess may be
    > highly over estimated.
    >
    >> About the only practical option you have is to move ISPs, trouble is they
    >> are all pretty awful.

    >
    > Yes, they are.
    >
    > I have been quite happy with xnet however, but I do wish that these
    > companies had more of a backbone where it comes to these overseas
    > organisations.


    and they will be taking the course of least resistance...most of their
    customers will be reasonable, and their margins are probably so tight,
    running on a show string that such expenses cannot be met
    willingly...and why should they fight a user's case...

    > These organisations have found it very profitable to fire off threats on
    > the flimsiest of evidence, by the thousands. They essentially "spam" ISP's
    > and consumers with them.
    >
    > I'd like it to become unprofitable for them.
    >


    Agreed (RE: MPAA and RIAA) they are really dodgy scum...

    They certainly have the right to uphold their copyright, but it should
    be and remain a civil matter....if they want to sue someone it should be
    from their pockets and not the public purse...(which is what they are
    pushing for).

    regards

    Thing
     
    thingy, Feb 7, 2008
    #9
  10. Brendan

    Brendan Guest

    On Fri, 08 Feb 2008 00:19:58 +1300, Richard wrote:

    >>> Certainly the Contracts Act.
    >>>

    >>
    >> Certainly? See above. I'd consider it a huge longshot.

    >
    > Contract law is a black art, and there are so many ways out of them to
    > do with good faith and meeting of the minds and crap like that. The
    > whole act is a minefield which is why there are specilists in the area.


    I agree, and that is my basic point: a contract that is seen as unfair my
    not be enforceable or may have enough wriggle room.

    A lot of ISP's seem to think they can get away with anything - look at the
    trouble xtra got into for advertising 'unlimited' and then limiting it.

    And they are not the only ones doing it: all the big isp's have been guilty
    of exactly that.

    Currently the fashion seems to be less limiting how many gigabytes you
    download, but more limiting WHAT services you can access. That also, by
    definition, is NOT 'unlimited' access. It also puts the ISP in the position
    of censoring what the user can do. And if they can censor THAT, a opponent
    might argue, why not child porn or terrorism?

    (*I* know the technical reasons why, but a lay public might not accept
    that, and therefore a Court might not either).

    --

    .... Brendan

    #409 +(4383)- [X]

    <DaZE> at my school.. the cop from DARE passed around 3 joints to show
    everyone... and he said "if i dont get all three of these back this schools
    getting locked down and everyones getting searched till i find it.." and
    like 30 minutes later when everyone got to see 'em and they got passed back
    the cop had 4


    Note: All my comments are copyright 9/02/2008 5:28:40 p.m. and are opinion only where not otherwise stated and always "to the best of my recollection". www.computerman.orcon.net.nz.
     
    Brendan, Feb 9, 2008
    #10
  11. Brendan

    Brendan Guest

    On Fri, 08 Feb 2008 08:13:21 +1300, thingy wrote:

    >> 1. A contract that is overly weighted in favor of the ISP may be ruled
    >> unfair by the Court.

    >
    > "may be"


    That's what i said.

    >> 2. A termination without explanation could be challenged in Court as a
    >> breach of contract. The customer could sue for any losses and expenses.

    >
    > A hard one to win IMHO...all the contract has to say is "we can
    > terminate with 1 month's notice without explanation."


    Which could be found to be an overly broad contract and unenforceable.

    Just because you get people to sign on a contract containing outrageous
    components, does not mean a Court will enforce it for you. Especially if it
    is illegal or even well outside of customary practice.

    >and to be fair to
    > a company they should be allowed to terminate a contract if they believe
    > it is not reasonable and profitable to them...as a user/consumer we
    > certainly can....


    Why would that be regarded as fair?

    There are plenty of examples of companies going broke because they
    contracted to supply something it turned out they could not. It's not the
    customer's fault. And don't cry too long for them - that's why many of them
    have .LTD on the end of their names.

    It's not there for decoration. It's a warning to consumers that they have
    limited their liability to you.

    *I* don't get to terminate with a finance company because they are costing
    me more than a competing company. I have to pay what I owe them.

    >> 4. The Consumer Guarantee's Act may also play a role in regards to both
    >> the reasonable expectations of customary service, and in regards to
    >> convoluted or tortuous Contract.

    >
    > I may have to argue this with Clear shortly...given how many get out
    > clauses ISPs have on performance and indeed Telco's before them I have
    > yet to see anybody get anywhere with them. The Commerce Commission? is
    > sueing Xtra over blatant untrue advertising at the moment...which
    > suggests a lot of latitude.


    The whole industry needs to be cleaned up and brought into a more
    professional standing.

    >> Never the less, it's a stupid risk for an ISP to take on behalf of an
    >> increasingly disreputable overseas organisation. The ISP gains ZERO
    >> benefit from it.

    >
    > The ISP is caught between a rock and a hard place...


    The ISP should worry MORE about their customers, who after all are PAYING
    them making their business possible.

    It's not like the RIAA can just turn up in NZ and sue everyone. The court
    will want to know what they tried to do to fix the problem before actions
    were taken. All the ISP needs to do is say "yes, they emailed us but we
    insisted they establish the guilt of the customer in the NZ legal system
    first to remove our liability to the customer".

    >>> About the only practical option you have is to move ISPs, trouble is they
    >>> are all pretty awful.

    >>
    >> Yes, they are.
    >>
    >> I have been quite happy with xnet however, but I do wish that these
    >> companies had more of a backbone where it comes to these overseas
    >> organisations.

    >
    > and they will be taking the course of least resistance...most of their
    > customers will be reasonable, and their margins are probably so tight,
    > running on a show string that such expenses cannot be met
    > willingly...and why should they fight a user's case...


    Because they rely on the customer's for their profits.

    They don't have to fight much. All they need to say is "we require a Court
    Order before we take action, for legal reasons".

    Works well enough over seas.

    >> I'd like it to become unprofitable for them.
    >>

    >
    > Agreed (RE: MPAA and RIAA) they are really dodgy scum...
    >
    > They certainly have the right to uphold their copyright, but it should
    > be and remain a civil matter....if they want to sue someone it should be
    > from their pockets and not the public purse...(which is what they are
    > pushing for).


    exactly.

    --

    .... Brendan

    #406373 +(4374)- [X]

    <[TN]FBMachine> i got kicked out of barnes and noble once for moving all
    the bibles into the fiction section


    Note: All my comments are copyright 9/02/2008 5:38:55 p.m. and are opinion only where not otherwise stated and always "to the best of my recollection". www.computerman.orcon.net.nz.
     
    Brendan, Feb 9, 2008
    #11
  12. Brendan

    Richard Guest

    >> I may have to argue this with Clear shortly...given how many get out
    >> clauses ISPs have on performance and indeed Telco's before them I have
    >> yet to see anybody get anywhere with them. The Commerce Commission? is
    >> sueing Xtra over blatant untrue advertising at the moment...which
    >> suggests a lot of latitude.

    >
    > The whole industry needs to be cleaned up and brought into a more
    > professional standing.


    Definatly, When a butcher sells meat, the meauring equipement has to be
    certified accurate, yet we are constantly hearing about lag and
    inaccuracys in ISPs metering. That and their marketeers telling you that
    you can "download 10 gigs or about xx number of songs" when anyone with
    any technical knowledge will be able to tell you that the file size you
    can download is well under 10 gigs with overhead and retransmission etc.

    >>> Never the less, it's a stupid risk for an ISP to take on behalf of an
    >>> increasingly disreputable overseas organisation. The ISP gains ZERO
    >>> benefit from it.

    >> The ISP is caught between a rock and a hard place...

    >
    > The ISP should worry MORE about their customers, who after all are PAYING
    > them making their business possible.
    >
    > It's not like the RIAA can just turn up in NZ and sue everyone. The court
    > will want to know what they tried to do to fix the problem before actions
    > were taken. All the ISP needs to do is say "yes, they emailed us but we
    > insisted they establish the guilt of the customer in the NZ legal system
    > first to remove our liability to the customer".


    The RIAA cant do anything in nz because they are the RIA _A_ - Anyone
    doing stuff in NZ would have to be the RIANZ outfit taking action.

    > Because they rely on the customer's for their profits.
    >
    > They don't have to fight much. All they need to say is "we require a Court
    > Order before we take action, for legal reasons".
    >
    > Works well enough over seas.
     
    Richard, Feb 9, 2008
    #12
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