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What Files are Legal for Distribution on a BBS?
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Copyright (C) 1989 Exec-PC All Rights Reserved
From Exec-PC Multi-user BBS, 414-964-5160
Bob Mahoney, SYSOP
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Software that is a commercial product, sold in stores or via
mailorder, that does not contain a statement saying it is OK to
give copies to others is NOT legal for distribution on a BBS.
Example: Lotus 1-2-3 is a commercial product, it is copyrighted,
and the copyright notice states you MAY NOT copy it for others.
Example: PC-Write (the Shareware version) is also copyrighted,
but the copyright statement clearly states you MAY make unlimited
copies for your friends.
TRICKS TO MAKE AN EDUCATED GUESS: Sometimes it is difficult to
guess whether or not some software or diskette is legal for BBS
distribution. There are a few obvious guidelines I use on the
Exec-PC BBS:
There is no documentation: Probably an illegal copy. A
Shareware author will always provide documentation with his
product. If he does not, nobody will be willing to make a
monetary contribution to his efforts. If the documentation takes
the form of a very short (one or two screen long) and sketchy
README file, be suspicious. The software is probably a hack
(illegal pirated copy) of a commercial product, and someone wrote
up a small hint file to help other pirates run the software.
The software is too good to be true: It probably IS too good to
be true! A good game, a good database, a good utility of any
type, requires at least dozens of hours to write. The really
good stuff requires thousands of hours to write, sometimes dozens
of MAN YEARS to write. Nobody is going to give this away for
free! If you get a copy of a game and it seems to good to be
true, I bet it is an illegal copy.
The software does strange things to your disk drives: For
example, when it is run, the A: drive or B: drive spin for a
moment, even though there is no disk present. This sometimes
indicates the software is looking for a key disk, but someone has
modified the software so the key disk is not needed. This is
probably illegal software.
The software does not have an easy escape to DOS, no EXIT
command: This usually means the software is illegal, someone has
hacked it to make it run, but it was too difficult to add a
proper escape to DOS to the commercial product.
DON'T GET ME WRONG, I am making it sound as if ALL software is
illegal. This is not the case. It is usually very easy to
recognize a fine, legal package, since the author is proud of his
work and usually puts his name, his favorite BBS number, a
disclaimer, a Shareware notice, or some other hint into the
package. It may be as simple as an initial screen saying "This
is Shareware written by so-and-so, this is Shareware, if you like
it please send $XX to the following address", and other text of
that type.
If in doubt, ask the Sysop!
END OF INFO
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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.
========================================================================
(C) 1989 by Atari Corporation, GEnie, and the Atari Roundtables.
May be reprinted only with this notice intact. The Atari
Roundtables on GEnie are *official* information services of
Atari Corporation. To sign up for GEnie service, call (with
modem) 800-638-8369. Upon connection type HHH (RETURN after
that). Wait for the U#= prompt. Type XJM11877,GEnie and hit
RETURN. The system will prompt you for your information.
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