[comp.sys.mac] Liability of [benign] virus creators et al.

jasst3@cisunx.UUCP (Jeffrey A. Sullivan) (03/22/88)

Some people have been ranting and raving about all of the retribution that they
desire to be taken against the MacMag folks.  They state that since some people
have had damage to their machines, despite the claim that it was benign, that
the MacMag people are liable or criminal or should be castrated, etc.  I
want to distance myself from these rather nasty sentiments from the start.  I
think that use of such terms and implied lawless behavior such as (I believe)
someone who said they should be "kicked in the teeth" are totally out of line
and should have no place on this net, or in any civilised discussion.  This
is the kind of vigilante mentality that really Goetz my goat. ;-)

Anyway, the claim is that since someone had damage from the virus (I suppose 
this is provable?  How do they _know_ the virus caused it?), that MacMag is
liable allows the following logical extension.  If anyone has damage to their
software/hardware configuration due to a malfunctioning software, that
software manufacturer is liable for the cost of repair and time of downness.
This is obviously ridiculous.  The MacMag people did not distribute an
intentionally damaging item, and any damage occurring must be the result of
unforeseen interactions.  How, then, can they be held liable if you can not do
the same ofr other software distributors?  If ted jones, author of the new
freeware utility, Splatz, discovers that his util caused Joe Schmoe to crash
his HD with valuable and irreplaceable data on it, is he liable?  Of course
not.

I do not condone the distribution of virii, and I _do_ think that it was an
ill-advised prank, but it was obviously not "evil" as many have put it, nor
can they be held liable (in my humble non-legal opinion) for any damages
resulting from its use.  I understnad that there are other extenuating
conditions (most importantly, that the people dealing with the virus did
not consent, knowingly or tacitly, to its use) but I still think the basic
point of this post is vlid.


-- 
..........................................................................
Jeffrey Sullivan			  | University of Pittsburgh
jas@cadre.dsl.pittsburgh.edu		  | Intelligent Systems Studies Program
jasper@PittVMS.BITNET, jasst3@cisunx.UUCP | Graduate Student

c9c-dk@dorothy.Berkeley.EDU (DJ Flymo) (03/22/88)

Jeffrey Sullivan writes:
> This is obviously ridiculous.  The MacMag people did not distribute an
> This is obviously ridiculous.  The MacMag people did not distribute an
> intentionally damaging item, and any damage occurring must be the result of
> unforeseen interactions.  How, then, can they be held liable if you can not do
> the same ofr other software distributors?

and:

> resulting from its use.  I understnad that there are other extenuating
> conditions (most importantly, that the people dealing with the virus did
> not consent, knowingly or tacitly, to its use) but I still think the basic
> point of this post is vlid.

    But you see that is the *point*.  The people did *not* consent to its use.
If you give me something that I do not know about or even want, shouldn't you
be responsible for any problems or damages incurred?  If you take your car to
be repaired, and along with repairing it, they do something else which you 
did not consent to or were asked about, and this causes more problems, would
you accept an excuse of "We didn't think it would cause any problems, so it
is not our fault."  This defense of "unforeseen interactions" is weak at best.
I could write a crummy program and as long as it worked for me, I could claim
any problems were the result of "unforeseen interactions".

    Why are other software companies not held liable?  Check the board, coach.
The warranties for software programs are quite explicit.  To quote the Microsoftwarranty, "Microsoft assumes no liability for any direct, indirect, incidental,
or consequential,special or exemplary damages, regardless of its having been 
advised of the possibility of such damages." This is not to say that companies
have not been held liable, but that pretty much covers their hindquarters.

    If you do not agree with my sentiments, please respond.  I would really
be interested in your thoughts on my "diatribe". 

			Bruce Burkhalter
			
			c9c-dk@dorothy.berkeley.EDU

"Anybody remember the limbo?  What the hell was that all about?"
					Dennis Miller

woody@tybalt.caltech.edu (William Edward Woody) (03/22/88)

In article <7919@cisunx.UUCP> jasst3@cisunx.UUCP (Jeffrey A. Sullivan) writes:
>Anyway, the claim is that since someone had damage from the virus (I suppose 
>this is provable?  How do they _know_ the virus caused it?), that MacMag is
>liable allows the following logical extension.  If anyone has damage to their
>software/hardware configuration due to a malfunctioning software, that
>software manufacturer is liable for the cost of repair and time of downness.
>This is obviously ridiculous.  The MacMag people did not distribute an
>intentionally damaging item, and any damage occurring must be the result of
>unforeseen interactions.  How, then, can they be held liable if you can not do
>the same ofr other software distributors?  If ted jones, author of the new
>freeware utility, Splatz, discovers that his util caused Joe Schmoe to crash
>his HD with valuable and irreplaceable data on it, is he liable?  Of course
>not.

I just have a little itty-bitty bit of legal theory, but I just had to
put in my two cents work.  (Which it's prbably worth...  ;-)

To successfully make a legal claim against someone for a product which does
damage, you must show
  (1)  That it was the fault of the product, and
  (2)  That the person or persons distributing the product are somehow
criminally negligent in distributing that product.

Suppose you (as a totally random example) are a building contractor building
a house.  You don't get the proper building permits necessary, and after
the owner of the house moves in, the house caves in and destroys all of his
personal property. You (the building contractor) are liable for the value of
the house and all the property destroyed, as it was your fault and you
knowingly did something wrong.

Now I'm not a lawyer nor do I practice law in any way, shape or form (I just
program Macintoshes), but I believe that one can argue successfully to a
judge in a civil court that "willfully creating a potentially destructive
'virus' which spreads without knowledge of any users" is good enough for
the "criminally negligent" part [remember in a civil case in many cases
showing that someone with knowledge and forsight did something potentially
harmful yet NOT illegal is as good as criminally negligent, but in a criminal
court you must show a broken law].

Therefore I do think there is a potential civil case against MacMag in this
country.  The problem is that they are not in this country [or so I have
seen posted here earlier], and filing against a foreign entity is (at best)
a very painful process.

  -  William Edward Woody
     woody@tybalt.caltech.edu                   (Mac>][n&&/|\)&&(MacII>AT)
Disclamer:  I haven't the foggiest idea what I'm talking about...