Cloud Code defence to Megaupload claims
The deadline for submissions on the structure for the NZ Cloud Code of Practice is 2 days away (27 January 2012).
Given the fears - some misplaced, others not - generated by the Megaupload site takedown, best practice for cloud providers is a critical issue. Courts consistently take note of compliance or otherwise with industry practice in deciding if actions or omissions are reasonable. Some statutes even specifically refer to it.
For example, s92E of the Copyright Act provides ISPs with a safe harbour from liability for cached material. The defintion of ISP would cover many cloud providers. But, the safe harbour is only available if certain conditions are satisfied, including that the provider:
... updates the [material] in accordance with reasonable industry practice
Australian copyright safe harbour provisions are similarly conditioned on an industry code.
So, an industry generated code that clearly sets out best practice is not just a "nice to have".
Not much time, but even a brief submission on the code (like mine below) would no doubt be welcomed.
