Xtra backtracks on terms of service

By PETER GRIFFIN

Xtra yesterday had its lawyers scrambling to amend its terms of service as opposition mounted to a new clause that effectively gave the internet service provider unlimited rights to its customers' online content.

Xtra had informed its 400,000 customers in a subsection of its terms of service that users putting content through Xtra's "websites or systems" were granting the ISP a "perpetual, royalty-free, non-exclusive, irrevocable, unrestricted, worldwide licence" to "use, copy, sublicense, redistribute, adapt, transmit, publish, delete, edit and/or broadcast, publicly perform or display," that content.

Xtra was savaged in a scathing column on Aardvark by industry commentator Bruce Simpson, who pointed out that the sweeping clause effectively gave Xtra the right to exploit - commercially or otherwise - any material going through its network.

Simpson said that unless Xtra revised the clause, he would not continue his Xtra account.

"It would be economic suicide for me to do otherwise.

"I can't afford to give away irrevocable, royalty-free licences and sublicences to anyone. Who can?"

However, by mid-afternoon, Xtra had undertaken a revision.

"Xtra accepts that it may be helpful to amend the clause in a way that makes the intention as well as the limits placed on Xtra's rights, explicit and clear," the company said.

Although Xtra still reserves unlimited rights to use its customers' intellectual property, use is limited to the "purposes for which you provided or made the customer materials available or to enable us and our suppliers to provide the services".

But that change was not enough for the Internet Society.

The society's executive director, Peter Macaulay, said the clause was "draconian" and that Xtra needed to improve the way it communicated with its customers.

"It's like someone saying they have an agreement to take possession of your house but they're not going to do it," he said.

Xtra, he said, did not need the clause to protect itself legally and advised Xtra users to email the company with their opposition to the new terms.

Xtra claims that it was necessary to have legal rights to the content on its network to protect itself.

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

The issue is obviously a touchy one for Xtra - it would not answer additional inquiries from the Herald.

Although local internet providers have not ventured as far as Xtra in asserting their rights to the intellectual property of its users, Xtra is following in the footsteps of major international ISPs such as MSN, AOL and Yahoo!

Accepting the terms of service for MSN mean users grant "Microsoft, its affiliated companies and necessary sublicensees permission to use your submission in connection with the operation of their internet businesses (including, without limitation, all MSN sites/services)".

Yahoo! has a more reasonable policy for those making use of its Geocities website hosting service.

Its terms grant the same rights outlined by Xtra, but "solely for the purpose of displaying, distributing and promoting your Yahoo Geocities site on Yahoo's internet properties".

Telecom business development manager Michael Greig said Xtra's terms of service did not apply to customers such as film production studios, who were sending content over Telecom's network.

Those companies had individual contracts with Telecom.