From: Black Unicorn <unicorn@schloss.li>
Date: Wed, 24 Apr 1996 12:54:43 +0800
To: Scott Brickner <sjb@universe.digex.net>
Subject: Re: Bernstein ruling meets the virus law
In-Reply-To: <199604231954.PAA22836@universe.digex.net>
Message-ID: <Pine.SUN.3.93.960423183933.10274D-100000@polaris.mindport.net>
MIME-Version: 1.0
Content-Type: text/plain


On Tue, 23 Apr 1996, Scott Brickner wrote:

> Bruce Marshall writes:
> >On Mon, 22 Apr 1996, Mark Aldrich wrote:
> >>  The term "virus" connotes a pathogenic quality in the mind of 
> >> many.  Unfortunately, this tendency continues in the use of the word 
> >> 'virus' within our community.
> >
> >    Personally, I can see many useful functions for viruses.  But I find the 
> >viruses that simply destroy data--which tends to be the majority--to be 
> >quite boring and childish.  A non-destructive and innovative virus is 
> >very interesting and comparable to any good software hack in my eyes.
> >
> >> While I understand that "intent" is something with which lawyers have to 
> >> contend when they defend or prosecute a case, I don't think that the 
> >> notion of intent to commit harm extrapolates correctly into the field of 
> >> virus writing. 
> 
> O.W. Holmes suggested out in "The Common Law" that the law delineates a
> certain minimum level of competence in forseeing the outcomes of our
> actions which all members of society are expected to attain.  We'll
> hold you responsible for actions a "reasonable person" should have
> avoided because of their danger.

With you so far.  (Though Holmes is by no means the litmus by which
today's legal world tests its process).

> As such, persons with limited
> training in manipulating biological viruses are expected to avoid doing
> so.  Individuals *with* training are expected to take adequate
> precautions to avoid their spread.  I see no reason why electronic
> viruses shouldn't be treated similarly.  If you're going to write them,
> you *better* take steps to prevent their release, or you are liable for
> the damages.

Now you jumped the argument a bit.  There is a difference in holding
someone to a reasonable standard generally, and defining several standards
based on the experience of the person to which the standard is being
applied.

This latter approach is often called (jokingly by some) the Objective
Subjective Standard.  (Objective standard being without consideration of
the view of the individual being judged, subjective including that view,
and object subjective being the consideration of what the general class of
individual would do without consideration of the individual's specific
view).

(What would a reasonable virus writer do is distinct from what a
reasonable Bob Dwyer, Ph.D. Computer science might do is distinct from
what a reasonable person might do).

Many courts reject higher (or lower- there are arguments for this 
too) standards of care for experts than for lay persons or other
non-experts in tort cases, prefering to impose the "reasonable person"
(Reasonable man for those of you who went to law school before 1985)
standard universially.

If there is interest, I will post exerpts of the arguments on both sides
of this issue with the header [Noise].


---
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"In fact, had Bancroft not existed,       potestas scientiae in usu est
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