The Hacker's Encyclopedia 1998/hackers_encyclopedia.iso/zines/n_z/pirate2.004

Text File | 2003-06-11 | 18.2 KB | 422 lines

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   *           PHILE 4: SYSOPS' LIABILITY                *
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** PIRATE reprints the following that arrived over the BITNET
lines. Following with our policy, it is printed exactly as
received. Only the date of the conference was removed. **

 /*/ SYSLAW: THE SYSOPS LEGAL MANUAL CONFERENCE /*/
     ==================================================
Editors' Note: The following conference took place on GEnie.
 The only changes we have made to any of this text is the format
 and spelling errors.  An additional note, I just finished
 reading the book.  It is interesting and I encourage all BBS
 operators to purchase it.  If you are interested contact: LLM
 PRESS, 150 Broadway (Suite 607), New York, NY 10038.  (212)
 766-3785)

 FORMAL CONFERENCE

 <[Holly] HS> Welcome to our formal conference with Jonathon
Wallace,

 <JON.WALLACE> Thanks very much for inviting me....

 <[Holly] HS> Can you tell us a little about yourself and your
  book before we start?

 <JON.WALLACE> I am a lawyer in private practice in New York City
 specializing in computer related matters including BBS law.  I
 am the co-author with Rees Morrison, of SYSLAW: The Sysop's
 Legal Manual, and editor of The Computer Law Letter, a bimonthly
 newsletter.

 <[Mel] NIGHTDIVER> Jon, would you talk a bit about where free
 speech stops and libel begins.  We obviously want to be able to
 criticize a product freely but I guess we have to stop at
 calling the developer names or spreading rumors that he is going
 bankrupt.  Where does libel start?  and what is the sysops
 liability for allowing such messages to stand?

 <JON.WALLACE> Libel varies from state to state.  In many places
 its a knowingly false statement.  In others it may even be a
 negligently false statement.  The responsibility of a sysop is,
 in my opinion about equivalent to the liability of a newspaper
 publisher for a comment someone else makes in his paper.
 Constitutional law says that a public figure can only recover
 against a newspaper for a libel done with "actual malice".


 <[Mel] NIGHTDIVER> For our purposes who would you say is a
 public figure a developer pushing his product?  A publisher of
 an online magazine?  The sysop?

 <JON.WALLACE> There is no precise definition.  Any of those
 might be held to be a public figure, as would your town
 councilman, but not your next door neighbor.

 <[Mel] NIGHTDIVER> I've heard the sysop's liability in libel
 compared to a news stand's liability but that boggles my mind
 because I never heard of a newsstand claiming a compilation
 copyright.  Would you comment on the sysop's position?

 <JON.WALLACE> Ever since there have been BBS's, people have
 debated whether a sysop is a publisher, a newsstand, a common
 carrier, a bartender, etc.  A sysop is NOT a common carrier
 (obligated to carry all messages, can't control content) Nor is
 a sysop a newsstand (too passive).  I think a sysop is
 essentially a sort of publisher.  She has the right to edit and
 control the contents of the BBS.

 <DAVESMALL> I've got a few questions, but I'll try not to hog
 things for others.  Awhile ago, I ran into a particularly nasty
 "anarchy" BBS in New York.  It offered files on everything from
 literally how to poison people to "kitchen improvised plastic
 explosives".  Is offering info like this legal?  Is there any
 legal precedent?

 <JON.WALLACE> Dave, the law says that "information doesn't kill
 people.. people kill people."  However distasteful, describing
 how to make poisons is constitutionally protected speech.

 <[Ralph] ST.REPORT> Evening Counselor, nice to see that
 information is information and not murderous non-sense.  My
 question is, what recourse, if any does an individual have when
 they find that certain information has been labeled "overly
 informative" and has been censored as a result?

 <JON.WALLACE> Ralph, if you mean censored by the sysop the user
 really has no recourse.  As I said, a sysop has the right to
 edit, modify and delete the BBS's contents.

 <[Ralph] ST.REPORT> I see, well a sysop was not the cause in
 this situation....in fact the sysop was quite fair about the
 entire matter... much more so than the individual.....I mean as
 individual to individual.

 <JON.WALLACE> Who censored the message, then?

 <[Ralph] ST.REPORT> The message was deleted as a result of the
 ensuing hulabaloo <-? voluntarily by me.

 <JON.WALLACE> Ralph---The sysop is the final arbiter in such
 cases.  It is only censorship when the government intervenes to
 prevent speech.

 <[Ralph] ST.REPORT> I agree, in effect I censored myself to
 avoid more controversy, I was looking for your opinion and I
 thank you for your time.

 <BOB.PUFF> Yes I was wondering if you could comment on
 self-maintaining BBSs that automatically validate uploaded
 files.  Is this illegal in itself, or could the sysop be in
 trouble if a copyrighted file is up for a bit of time till he
 realizes it?

 <JON.WALLACE> Bob, there are no precise rules in this area yet.
 My best guess is that the sysop has an obligation to exercise
 due care.  For that reason I would try and set things up so that
 a pirated file would be discovered in under a couple of days.
 Therefore, the idea of a self-validating BBS makes me nervous.

 <BOB.PUFF> I see. right - but its that couple of days that the
 file might be up. ok something to think about. thanks.

 <WP.DAVE> Jon, do you consider your SYSLAW book to apply much to
 information service sysops, or is it 95% for the private BBS
 operator?

 <JON.WALLACE> The book was written for the BBS sysop, but much
 of what's in it applies equally to service sysops...e.g., the
 discussion of copyright, libel, etc.

 <DAVESMALL> Hi again. As I understand it, the libel law says
 (basically) that to commit libel, you have to say something
 false, know it's false, and do it with malice intended.  First,
 am I right? (*grin*) Second, does that apply different to public
 figures vs. mere mortals?

 <JON.WALLACE> Dave, the rules you stated are correct for a media
 defendant (newspaper, etc.) libelling a public figure.  If the
 "libeller" is a private citizen, the states are free to hold you
 to a mere negligence standard.

 <DAVESMALL> Can you expand on "negligence"?

 <JON.WALLACE> Yes a careless false statement, e.g. something you
 didn't bother to verify.

 <CRAIG.S.THOM> Along the lines of the self-validating
 files...what if users upload copyrighted text into the message
 bases?  Song lyrics, documentation, that type of thing?
 Messages are never held for validation.

 <JON.WALLACE> I believe a sysop should arrange to read every new
 message every 24 hours or so.  If its a big message base, get
 some assistant sysops to help.  Of course, copyrighted text may
 not be easy to recognize, but if you do recognize copyrighted
 material it should be deleted unless its a fair use (e.g., brief
 quote from a book or song, etc.)

 <[John] JWEAVERJR> Can you comment on the differences between
 the legal standards for libel and slander?  And, in particular,
 which category does this RTC (as a "printed record" of a live
 conversation) fall?

 <JON.WALLACE> Slander is spoken libel is written I am fairly
 sure that all online speech will be classified as libel, not
 slander.  Frankly, I am more familiar with the libel standards,
 which we have been discussing than with slander, where they
 differ.

 <DAVESMALL> I did come in a bit late, if this has already been
 answered; where might I find your book, and what's it retail at?

 <JON.WALLACE> The book is $19 plus $2 p&h from LLM Press 150
 Broadway, Suite 610, NY NY 10038.

 <DAVESMALL> Okay back to libel.  Are editors of magazines in
 general held responsible for the content of their magazine, or
 is the writer of a given article deemed libellous that's held
 responsible? Or both?

 <JON.WALLACE> Potentially both.

 <DAVESMALL> The standards would depend on if the libeller
 (sounds like a referee! grin) was a public figure or private
 person, also? e.g., negligence vs. malice?

 <JON.WALLACE> The US Constitution imposes the standards we
 discussed for media defendants, and leaves the states free to
 make their own laws in all other cases.

 <DAVESMALL> Since networks are interstate, which states' laws
applies?

 <JON.WALLACE> Dave, thats something the courts will have to
 settle.  Magazines have been successfully sued in states where
 they sold only a few copies.

 <[Mel] NIGHTDIVER> I understand there have been some cases
 regarding private messages in a BB as opposed to public
 messages.  Does that mean that if someone sends me Email here on
 GEnie and I forward it to someone else, that I could be in
 trouble?

 <JON.WALLACE> Mel, we are getting into a whole new area here.
 The Electronic Communications Privacy Act (ECPA) which protects
 the privacy of email.  In the case you described.  There would
 be no liability under ECPA, because the recipient of the message
 has the right to make it public.

 <[Holly] HS> I have a related question, Jonathon...are you
 familiar with Thompson v. Predaina? (The case that never was...
 *grin*)

 <JON.WALLACE> Yes, I read the pleadings, and have talked to and
 been flamed by, Linda Thompson <grin>.

 <[Holly] HS> Can you summarize the case a bit for the rest of us
 and give us your opinion?  (I happen to personally know both
 parties... Linda was a friend of mine.  Bob is a friend of mine.
 Key word: "was") Everyone's been flamed by Linda Thompson.
 *grin* Linda sued Bob under the ECPA claiming that he had
 disclosed private messages and files of hers to the public.  He
 was not the recipient of the files or messages and, if the facts
 as stated in the complaint are true, it seems as if there was a
 technical ECPA violation.  The case never went any further
 because (I am told).  Predaina declared bankruptcy (since you
 know him, you can clarify if this turns out not to be the case).

 <[Holly] HS> Bob did declare bankruptcy, which was a wise move.
 I didn't read the complaint, however, I also know that when
 Linda (and Al) had a BBS, they were "guilty" of exactly what I
 understood Bob did. (Allegedly)

 <JON.WALLACE> I've often thought it was a too drastic move on
 his part.  Based on the information I had, I doubted the case
 would have resulted in drastic damages, even if there was a
 technical violation.

 The moral of the story: Don't disclose private mail of which you
 are not the sender or recipient.

 <[Holly] HS> I think it was very precautionary on Bob's part.
 And, if I understand what happened, the case was dropped because
 Linda was suing partially on the grounds of character defamation
 which allowed Bob to dredge up some of Linda's rather tawdry
 past, allegedly.  (I don't think I'm spelling that right.  It
 looks wrong. :-) Thanks, Jonathon... I have a few more for
 later... :-)

 <DEB> Hi Jon, this is deb! Christensen, I take care of the
 Commodore and Amiga areas here on GEnie.  My question is an
 unresolved one about copyrights and music.  Are there any 'fair
 use' guidelines which affect musical arrangements to computer
 transcriptions which people upload and distribute for their
 electronic friends?

 <JON.WALLACE> Deb....The upload of a copyrighted song or image
 in electronic form is a copyright violation.  I have never yet
 heard of a case of a court finding such an upload to be a "fair
 use" mainly because courts haven't really yet dealt with the
 issue of uploads at all.  However, I think the argument for a
 fair use is slim, considering that the standards of fair use
 include whether the use....is commercial, and how much of the
 work is copied.  An upload to a commercial service of an entire
 song or image, for download by people paying connect charges,
 seems like a pretty clear copyright infringement.

 <DEB> So, a musician does not have a right to arrange music and
 perform it for his friends?  Is it the uploading that is a
 violation or the computer arrangement for the performance?

 <JON.WALLACE> A private performance is not a copyright violation
 but there is nothing private about an upload to a commercial
 service with more than 100,000 users.

 <DEB> And to a public BBS?

 <JON.WALLACE> Public BBS: I would say its the same thing, even
 though not quite as commercial.

 <DEB> Aha, so it isn't anything to do with cost involved.  It is
 the actual transcription which is the problem?  I *know*
 digitized music is a problem but had always presumed we had the
 same right to make an arrangement on a computer as we did on
 paper.  :-(

 <JON.WALLACE> Deb, I would say you do have the same right to
 make an arrangement, just not to distribute it to other people.

 <BOB.PUFF> What are the legalities of telephone companies
 charging business rates for BBS telephone lines?  I understand
 they have either proposed it, or tried it in some places.  Your
 comments?

 <JON.WALLACE> It has happened a lot, but I understand in several
 places concerted efforts to communicate with the telco got them
 to back down.  Not aware if anyone ever mounted a legal
 challenge, though.

 <BOB.PUFF> I see. I don't see how a bbs constitutes the charge,
 but I guess there is a large grey area there.

 <JON.WALLACE> The telco's argument was that the BBS was
 providing a quasi-commercial service. If you look at any BBS
 list, you will see a proportion of company sponsored BBS's that
 confuse the issue.

 <DOUG.W> Jon, earlier you stated that the recipient of EMail was
 free to distribute that mail.  Is there any way to ensure
 privacy in EMail?  Would a Copyright notice on each message
 prevent further distribution?

 <JON.WALLACE> I assume you are asking if there is a way to keep
 the recipient of a message from making it public.

 <DOUG.W> Yes.

 <JON.WALLACE> The answer is not really.  Putting a copyright
 notice on might give many people pause, but suppose someone
 violated that copyright, what are the damages?

 <DAVESMALL> Got two for you. First, with BBS's and networks
 being so (relatively) new, are there a large number of libel
 cases of stuff going over the nets, as opposed to say magazine
 cases? E.g., is it a growing practice? *grin*

 <JON.WALLACE> I am only aware of one case of online libel, the
 one discussed in my book, the Dun & Bradstreet case (and I guess
 Thompson v. Predaina also included that element).

 <DAVESMALL> Second, do you find that judges and juries in such
 cases (jury assuming a jury trial, of course) have a great deal
 of "learning curve" to go through about networks?  Most people I
 know outside computers don't know a genie from a compuserve from
 a hole in the wall.  they can't imagine what the BBS world is
 like.  Does this make such a case tougher/easier on an attorney?

 <JON.WALLACE> I frequently will try a computer case to the
 judge, waiving the jury demand less education to do but I
 wouldn't necessarily do that if I were the defendant in a libel
 case.  Depends what part of the country you're in; in Manhattan,
 you could probably get a jury that knew what a modem was.

 <DAVESMALL> And if not, it would probably be prudent to try to
 educate one vs. six ? Fair enough.. okay I'm done

 <JON.WALLACE> It really depends on the circumstances..deciding
 when to go for a jury also has to do with how much you need, and
 can exploit, a sympathy factor.

 <[Holly] HS> I have one last question myself before we wrap
 up.... (which is not intended as a pun with regard to my
 question... *grin*) Shrink wrap licenses, are they enforceable?
 Legal?

 <JON.WALLACE> There has been some disagreement on this but my
 personal opinion is that the average shrink wrap license would
 not stand up.  It was never negotiated, never really agreed to
 and can't convert what is obviously a sale into something else
 any more than calling a car a plane will change it into one.

 <[Holly] HS> However, if it is visible before the buyer actually
 buys then can a presumption be made that they have read and
 agreed?

 <JON.WALLACE> There are still other problems. The buyer hasn't
 dealt with the publisher, but with a retailer. There is no
 "privity" of contract.

 <[Holly] HS> "privity" meaning... ?

 <JON.WALLACE> No direct contractual relationship between
 publisher and purchaser, despite the fiction that the license
 purpotts to create.

 <[Holly] HS> Then a company who insists that this disk and this
 software still belongs to them, you don't feel it is
 enforceable?

 <JON.WALLACE> It would depend on the circumstances, but if you
 buy an off the shelf product at Software to Go, in my opinion,
 you have purchased the copy even if there is a shrink wrap
 license that says you have only licensed it.

 <[Holly] HS> Interesting... another point of licensing... have
 you read the Apple licensing agreement?

 <JON.WALLACE> I read it some time ago, when the case started.

 <[Holly] HS> It states that Mac ROMs can only be used in an
 Apple machine.  Although there is contention that the ROMs are
 the heart of the machine, so whether they goest, so goest the
 machine.

 <JON.WALLACE> Sorry, I thought you meant the Apple/Microsoft
license.

 <[Holly] HS> For those of us who use an emulator, like Spectre
 or Magic Sac, it could be an important point.

 <JON.WALLACE> The question is a very tricky one.  On the whole,
 it would be....difficult to prevent a legitimate purchaser of a
 ROM from doing anything he wanted with it, including sticking it
 in another machine.  But I haven't seen the license you refer
 to.

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