[comp.society] Parental Responsibility and Software Piracy

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