taylor@hplabs.HP.COM (Dave Taylor) (12/15/87)
[This note is based on an article in an HP Users Group publication] Can Parents be Held Legally Responsible for Acts of Software Piracy By Their Teenage Children? Jonathan D. Wallace, Esq. a computer lawyer represnting the paintiff in Weaver v. Doe, a case pending in federal court in New York, believes they can. Weaver, the plaintiff, owns the copyright of ``Cards'', a commercially distributed card-playing simulation for the Atari ST computer. The teenage defendant allegedly operated a pirate bulletin board system from which users could download ``Cards'' and other copyrighted programs. Although software companies have sued software pirates before, this is the first case of which Wallace is aware in which the parate's parents have also been sued. According to Wallace, the case raises a question of first impression under the copyright law. ``Our argument is that a parent who supplies the computer equipment and telephone line which is used to operate a pirate bulletin board, and who then tolerates the trading of pirated software, contributes to the copyright infringement,'' Wallace said. ``Since teenagers usually have no assets with which to pay a judgement, holding the parents responsible will give a strong incentive to families not to condone this type of behaviour.'' [My thoughts on this: First off, it implies knowledge and awareness of the childs activity on the part of the parent, and I believe that most parents who allow their children to run a BBS (or indeed have a computer of their own) are either not aware of, or not interested in, the technologies involved. This will prove to be one of the cruxes of the ensuing legal battle, I would suspect, because this case seems a rather alarming extension of the so-called deep pockets legislation, where `rich companies' are viewed as a more appropriate target of litigation than poor ones. The interesting alternative is that Atari and other inexpensive home computer companies might find themselves in the position where they will have to convince parents that their children cannot run software that wasn't legally obtained (e.g. through some sort of software serial number tracking, or external `hardware lock' or some other mechanism), resulting in less software around (since it would also impede the distribution of free or shareware software, since more parents will be keeping track of the software the child has, and might not believe that unpurchased software is okay to own) and ultimately less sales of their computers. Any other thoughts? -- Dave Taylor]
daveb@rtech.UUCP (Dave Brower) (12/18/87)
I'm not sure I understand Dave's problem with this concept [of parents being sued for illegal acts their children engaged in]. Parents are often liable. The key issue would seem to be whether the parent is negligent in not being aware of the child's activities. A strong case can be made that a parent is negligent in allowing totally unsupervised use of a computer with a modem, particularly in light of the extensive attention that has been paid to criminal hacker-dom. It is not that the parent knows, or is aware of the kid's activities, but that the parent _should_ know, and that lack of knowledge is negligence. And remember, a copyright infringement is just as much a tort as running over some bushes in the family car on an unwatched joy ride. There is nothing special about "computer" in this context. If Bobby poisons the neighbor's cat, the parents can't escape by saying, "We didn't know there was anything dangerous in the chemistry set." From "Gilbert Law Summaries, TORTS" by Marc A. Franklin, a Cliff's notes for law students: "(1) Common Law rule -- no vicarious liability: [S504] Under the general common law rule, a parent is NOT vicariously responsible for torts committed by the child. The rationale is that the parent simply does not have sufficient control to justify liability where the parent was not otherwise negligent. "(a) Statutory changes: [S505] However, the common law rule has been modified by statutes in many states today, so that vicarious liability will be imposed under certain circumstances [ See, e.g., Cal. Civ Code S1714.1, making parent liable up to $2000.00 for any "willful misconduct" of child...] "(2) Liability based on parent's own negligence: [S506] Even if not vicariously liable for a child's torts (above), a parent -- or anyone else having care or custody of a child--can be held liable for injuries cause by the child _where the parent himself was negligent_. In other words, these are cases based on the parent's _own liability_--and not any imputed or vicarious liability. Thus the parent may be liable for: ... "(b) Failing to exercise reasonable care to protect again st the child's known dangerous tendencies (e.g, allowing a child who had previously caused fires to have matches) ... "(d) Failing to prevent child's foreseeable use of inherently dangerous instrumentalities (e.g, leaving dynamite caps or loaded firearms in child's presence) "(e) Negligent Entrustment, see S476... "Negligent Entrustment doctrine: [S476] Even if the tortious act has not been committed in the bailor's presence, she will be liable if she has failed to exercise reasonable care in selecting the bailee--i.e., she knows or should know the bailee is likely to cause harm to others. "1) Example: Entrusting a car to an inexperienced driver, or to a driver known to be irresponsible... "2) Example: Parents have been held liable for negligently entrusting a vehicle to a child with known reckless propensities, even where title to the car is in the child." Simple solutions: don't have kids, or lock them in a closet. (Is this really necessary? -> :-) -dB