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' lawsapplies?  <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/Microsoftlicense.  <[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.  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