From: "E. ALLEN SMITH" <EALLENSMITH@ocelot.Rutgers.EDU>
Date: Sat, 25 May 1996 13:44:05 +0800
To: unicorn@schloss.li
Subject: Re: An alternative to remailer shutdowns
Message-ID: <01I53JFM4MP28Y4Z90@mbcl.rutgers.edu>
MIME-Version: 1.0
Content-Type: text/plain


From:	IN%"unicorn@schloss.li"  "Black Unicorn" 24-MAY-1996 11:44:01.40

>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.

	Hmm... the first (license vs item) could be argued with by that the
remailer operator _is_ sending the recipient a copyrighted work, which the
remailer has - so far as it knows - been given proper permission to choose to
transfer to the recipient.
	The second is more bothersome, and is an instance of the unfortunate
overuse of liability in the American legal system. As you state,

>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.

	I would gather that countersuits for violation of a contract - that not
to sue - would not be likely to succeed. Unfortunate.

>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.

	A clear reason for demanding that mail come from a recognized remailer
before putting it to an output end. In this case, the ouputting remailer never
has to worry about it - that's the job of the actual primary inputting
remailer.

>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.
 
	The simple way to put this is that juries and, indeed, the voting
population, are completely incompetent to be in power. This is always
something that one should remember, and an excellent argument as to why
democracy is not a good system of government.

>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.

	Would also doing a respond-back hold harmless agreement, of the form
perhaps of: "We do our best to guarantee that this system will not be used
illegitimately. Unfortunately, this is not always possible. By responding to
this message and requesting us to send you the information in question, you are
agreeing to hold us harmless." help any? Or would this be seen by the court as
an attempt to reduce liability when the court (incorrectly) believes it should
be assigned?
	-Allen