From: Black Unicorn <unicorn@schloss.li>
Date: Sat, 25 May 1996 06:58:09 +0800
To: "E. ALLEN SMITH" <EALLENSMITH@ocelot.Rutgers.EDU>
Subject: Re: An alternative to remailer shutdowns
In-Reply-To: <01I50N2UZXFI8Y4X9G@mbcl.rutgers.edu>
Message-ID: <Pine.SUN.3.93.960524113302.657C-100000@polaris.mindport.net>
MIME-Version: 1.0
Content-Type: text/plain


On Wed, 22 May 1996, E. ALLEN SMITH wrote:

> From:	IN%"unicorn@schloss.li"  "Black Unicorn" 22-MAY-1996 19:03:58.98
> 
> >On Tue, 21 May 1996, Ben Holiday wrote:
> 
> >> On Tue, 21 May 1996, Daniel R. Oelke wrote:
> 
> >>> The second is to simply include the
> >>> consent-code along with the encrypted peice of mail and a legal notice
> >>> stating that decryption of the mail constitutes your consent to receive
> >>> the mail, as well as your agreement to hold the remailer-operator harmless
> >> 
> >> By reduction - you could just do a rot13 on the message and 
> >> append the "legal notice".   If all the information for decoding
> >> a message is present in that message, is a different encoding
> >> mechanism really any different from straight ASCII text?  
> >> (i.e. Netscape 9.13 might have auto decoding built it....)
> >> Then, the user doesn't do anything "extra" - does this invalidate 
> >> the notice?
> 
> >A person has notice of a fact if he knows the fact, has reason to know it,
> >should know it, or has been given notification of it.  Restatement,
> >Second, Agency section 9.
> 
> >The important issue here is what constitutes constructive or implied 
> >notice (the second example above).
> 
> >Constructive notice exists where a party could have discovered a fact by
> >proper diligence and where the situation casts a duty on him to inquire
> >into the matter.
> 
> >A person who has _actual_ notice of circumstances which would set of the
> >"alarm bells" of a prudent person has constructive notice of the issue
> >itself where a notice clause was available and easily referenced.
> 
> >See F.P. Baugh, Inc. v. Little Lake Lumber Co., 297 F.2d 692, 696.
> 
> >Also comes the question what notice is adequate?  Notice reasonably
> >calculated, in all circumstances, to apprise all interested parties of
> >actionm and opportunity to present their objections, says U.S. v San Juan
> >Lumber Co., 313 F.Supp. 703, 709.
> 
> >I'm not going to discuss what constitutes a legal agreement here for the
> >purposes of waiving rights to hold the remailer operater harmless.  These
> >are traditionally unnegotiated agreements that courts are not likely to
> >want to enforce.  (Back of a ski lift ticket, notice that the garage is
> >not responsible for theft).
> 
> 	Umm... the RSA licensing agreement isn't exactly a negotiated contract.
> What makes the difference between the contract in question and the RSA
> licensing agreement (to use it as an example)?

One is trying to remove liability for a tort, the other is instructing
the purchaser on the conditions of use.

While a ski-lift ticket could be considered a "license" to use the
property, selling an actual intellectual property ITEM makes the limiting
terms of its purchase a bit easier for a court to stomach.  Telling a
licensee that if he gets hurt its too bad, and telling one that he cannot
call a function or copy the work are fairly distinct in this way.

In the practical world, the plaintiff who is trying to enforce a software
licensing agreement is much better off than a defendant trying to resist
liability for a tort.

It's a question of appearances which can get lost in the nuances of
definition and technicality.

> >If a court feels that the remailer operator is being negligent or some
> >such, a notice like you are talking about is not likely to be very
> >effective.
> 
> 	Part of this depends on negligent in what sense. If, due to the
> message being encrypted, the remailer operator couldn't read it to see if it
> was copyright-violating anyway, would he/she be negligent to send it on?  

That depends.  If there was reason to believe, for instance, that the
message might indeed be four-horseman type (as a plaintiff's attorney I
would jump all over any messages which came from "soandso@PLO.com" or
somesuch) then negligence becomes an issue regardless.  Perhaps the host
was the site from which other nastiness was mailed?  Anything that could
be shown to put the operator on effective, implied, or constructive notice
that something was amiss.

Remember, technical savvy judges are few and far between.  Technical savvy
juries are nearly non-entitites.  My concept of what is or is not
suspicious when it comes to such things is going to be much more
sophisticated than that of a judge or jury in most if not all cases.

This is an important point.

The truth of the matter is entirely pointless in the U.S. Judicial system.
The APPEARANCE of the matter is key.

'punks seem to forget this in all their discussion of what a court might
do because, simply put, they know more than 99% of the population about
the subject.
 
> >I find that making the user decrypt the message as acceptance of the mail
> >is clever, but what exactly does it accomplish?  The user can still have
> >his copyrights violated in the text, what does it matter that he did or
> >did not accept the mailing?
> 
> 	The primary use of the contract is to avoid complaints from the user
> for "harrassing" email, not to avoid copyright problems.

>From the recipiant?
I would simply put a notice of where complaints can be directed to, and
publish a stated (and carefully worded) policy for addressing abuses.

This will go a LONG way to insulating remailer operators.

"Your honor, my client has made every effort to filter the legitimate
users of his system from the illegitimate.  He has a stated policy
regarding complaints and investigates them to the full extent of his
ability in every case in which a complaint is filed.  Even as this is so,
he can no more completely assure that harassing messages will never slip
through than can the U.S. post office protect every citizen from mail
bombings."

Or some such.  If you can say this in court and back it up, you're in
better shape.

---
My preferred and soon to be permanent e-mail address:unicorn@schloss.li
"In fact, had Bancroft not existed,       potestas scientiae in usu est
Franklin might have had to invent him."    in nihilum nil posse reverti
00B9289C28DC0E55  E16D5378B81E1C96 - Finger for Current Key Information
Opp. Counsel: For all your expert testimony needs: jimbell@pacifier.com