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Re: Compromised machines liable for damage?
In message <[email protected]n.c om>, "Hannigan, Martin" writes: > >In the general sense, possibly, but where there are lawyers there is = >always discoragement. > >Suing people with no money is easy, but it does stop them from = >contributing in most cases. There are always a few who like getting = >sued. RIAA has shown companies will widescale sue so your argument is = >suspect, IMO.. > I've spent a *lot* of time talking to lawyers about this. In fact, a few years ago I (together with an attorney I know) tried to organize a "moot court" liability trial of a major vendor for a security flaw. (It ended up being a conference on the issue.) The reason there have not been any lawsuits against vendors is because of license agreements -- every software license I've ever read, including the GPL, disclaims all warranties, liability, etc. It's not clear to me that that would stand up with a consumer plaintiff, as opposed to a business; that hasn't been litigated. I tried to get around that problem for the moot court by looking at third parties who were injured by a problem in a software package they hadn't licensed -- think Slammer, for example, which took out the Internet for everyone. The issue of liability based on operational practices is untested. As I concluded in that book chapter from 1994, I (and the attorneys who helped me (a lot) with it) felt that there may very well be cause for a lawsuit. However, to the best of my knowledge there have been no court rulings on this issue. Unless and until that happens, we're just guessing. I'll give two short quotes that illustrate why I'm concerned. This one is from a standard textbook on tort law: The standard of conduct imposed by the law is an external one, based upon what society demands generally of its members, rather than upon the actor's personal morality or individual sense of right and wrong. A failure to conform to the standard is negligence, therefore, even if it is due to clumsiness, stupidity, forgetfulness, an excitable temperament, or even sheer ignorance. An honest blunder, or a mistaken belief that no damage will result, may absolve the actor from moral blame, but the harm to others is still as great, and the actor's individual standards must give way in this area of the law to those of the public. In other words, society may require of a person not to be awkward or a fool. The second, a quote from a 1932 (U.S.) Court of Appeals opinion, was for a case where some barges sank because the tugboat pulling them had no radio receivers, and hence didn't know the weather forecast: Indeed in most cases reasonable prudence is in face common prudence; but strictly it is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices. It may never set its own tests, however persuasive be its usages. Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission. ... But here there was no custom at all as to receiving sets; some had them, some did not; the most that can be urged is that they had not yet become general. Certainly in such a case we need not pause; when some have thought a device necessary, at least we may say that they were right, and the others too slack. ... We hold [against] the tugs therefore because [if] they had been properly equipped, they would have got the Arlington [weather] reports. The injury was a direct consequence of this unseaworthiness. Again, though, this has never been litigated for ISP-type issues.