What Files are Legal for Distribution on a BBS? ----------------------------------------------- Copyright (C) 1989 Exec-PC  All Rights Reserved From Exec-PC Multi-user BBS, 414-964-5160Bob Mahoney, SYSOP----------------------------------------- Software that is a commercial product, sold in stores or viamailorder, that does not contain a statement saying it is OK togive 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 unlimitedcopies for your friends. TRICKS TO MAKE AN EDUCATED GUESS:  Sometimes it is difficult toguess whether or not some software or diskette is legal for BBSdistribution.  There are a few obvious guidelines I use on theExec-PC BBS: There is no documentation:  Probably an illegal copy.  AShareware author will always provide documentation with hisproduct.  If he does not, nobody will be willing to make amonetary contribution to his efforts.  If the documentation takesthe form of a very short (one or two screen long) and sketchyREADME file, be suspicious.  The software is probably a hack(illegal pirated copy) of a commercial product, and someone wroteup a small hint file to help other pirates run the software. The software is too good to be true:  It probably IS too good tobe true!  A good game, a good database, a good utility of anytype, requires at least dozens of hours to write.  The reallygood stuff requires thousands of hours to write, sometimes dozensof MAN YEARS to write.  Nobody is going to give this away forfree!  If you get a copy of a game and it seems to good to betrue, I bet it is an illegal copy. The software does strange things to your disk drives:  Forexample, when it is run, the A: drive or B: drive spin for amoment, even though there is no disk present.  This sometimesindicates the software is looking for a key disk, but someone hasmodified the software so the key disk is not needed.  This isprobably illegal software. The software does not have an easy escape to DOS, no EXITcommand:  This usually means the software is illegal, someone hashacked it to make it run, but it was too difficult to add aproper escape to DOS to the commercial product. DON'T GET ME WRONG, I am making it sound as if ALL software isillegal.  This is not the case.  It is usually very easy torecognize a fine, legal package, since the author is proud of hiswork and usually puts his name, his favorite BBS number, adisclaimer, a Shareware notice, or some other hint into thepackage.  It may be as simple as an initial screen saying "Thisis Shareware written by so-and-so, this is Shareware, if you likeit please send $XX to the following address", and other text ofthat type. If in doubt, ask the Sysop! END OF INFO                  >--------=====END=====--------<  ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++    *******************************************************   *           PHILE 4: SYSOPS' LIABILITY                *   ******************************************************* ** PIRATE reprints the following that arrived over the BITNETlines. Following with our policy, it is printed exactly asreceived. 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 JonathonWallace,  <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