Last October TradeMe accused a rival auction site Lixtor.co.nz of copyright infringement, saying that Lixtor's Terms and Conditions page and Privacy Policy page were theirs. In their letter TradeMe asserted that "there can be no doubt that they have been produced by copying TradeMe's Terms and Conditions, and Privacy Policy." In response Lixtor's Henry Aung denied the claims, saying that "I think we cannot run the site without proper Terms and Conditions and Privacy Policy. This will prevent users from knowing what they are signing up to and which in turn discourage people from signing up to Lixtor." Under Section 92 could an ISP decide whether to remove these necessary webpages? More inside...

So, what's the harm? As Henry Aung says these documents form a legal protection and without them Lixtor would stop trading. The company would lose revenue until it could replace them and trading may cease for days.

One important point is that lawyers often cut-and-paste together legal documents. Introducing variation for the sake of creating a unique work for each client is not the goal, and by using time tested snippets a legal document is more robust. Copyright is used by many sectors of society and in this case unnecessary deviation may be considered harmful.

MED's advice to website hosting companies is:

Quote

"The ISP is required to consider the notice of infringement and as soon as possible after receiving the notice either delete the infringing material or prevent access to it. If the ISP fails to take prompt action after receiving the notice, it could be liable for copyright infringement even if it was not directly responsible for the posting of the infringing material on the website."

So with the threat of copyright infringement an ISP must promptly decide whether it's infringing or not.

Lixtor responded to TradeMe by saying that the Privacy Policy was infact based on the TRUSTe Model Privacy Agreement, and in subsequent letters TradeMe did not take issue with the Privacy Policy.

TradeMe still claim that the Terms and Conditions document was taken from their site, but TradeMe has not pursued this further.

Now this article hasn't been written to pass judgment on the merits of Lixtor or TradeMe, both are very good trading sites. This is however yet another example of how ISPs will have great difficulty deciding copyright infringement under 'Section 92'.

Different sectors of society have different approaches to copyright and reuse, and the legal sector is quite different to that of the creative.

Do you know how section 92a relates to hosting of websites?

I presume that Lixtor is hosted in a co-located facility in New Zealand. So Trademe sends an infringement letter to the facilities ISP. In which case, if the ISP decided by its arbitrary process that there was a breach of copyright, and it cut the internet to the facility, it would also bring down all the websites hosted in that facility.

Furthermore, if Laxtor wanted to avoid Trademe's action they could just move the site to a host in Australia or the US where section 92a does not apply.

Do you know if this is the case?

If so, it means even if the law was easy to interpret (which you have shown it not to be) it would be really easy to circumvent, but if you were not up with the play, very easy to get taken down as collateral damage.