Illegal software and ehMac liability? - ehMac.ca
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Old Feb 5th, 2003, 08:01 AM   #1
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Just thought I'd start a new conversation that would change the focus a bit on a topic that I think might be dealt with to death.

What exactly would be the liability for ehMac with regards to software that is sold, by advertising on this board (usually on hardware that is being sold)? Although I agree with the concept that illegal software has no place on here... I'm more curious about the reaction that it has prompted. Aside from being againsts illegal software (that's not what I'm focusing on here); it has been implied that somehow there could be legal ramifications for ehMac (admins). I don't know if I actually agree with this and would like to know on what law or precedent this is founded on? If we use a similar situation, would a newspaper be liable for illegal software on any machines that are sold through their paper? I doubt it.

Anyways....just curious.

Jason
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Old Feb 5th, 2003, 05:24 PM   #2
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The liability is a grey area, but it goes something like this:

The Mayor reads and deletes a bunch of posts that involve questionable SW.

The Mayor fails to do so on one or more occasions, for whatever reason (time, hassle, whatever).

Because he had actively gone about policing the site, he can now be said to be responsible for what appears (ie it is implied by his previous actions that he approved the undeleted qustionable post, by having it remain).

Most boards have a kind of "hands-off" approach to posts because of this. However, it would take but one complaint to ehMac's ISP to have them pull the plug, because most ISPs are as afraid of liabilty as anyone else.

All this stuff isn't really clear in law, but nobody wants this board to have to defend itself, even if it eventually is found to be in the clear, because it costs time, money, and grief.

All in all, it's better if the users of the board police themselves. So polite private messages to the poster, a heads-up private message to the Mayor, and clear rules at the trading site.

If the poster doesn't fix the post first, the Mayor is probably OK as long as he's responding to a message from another user, and not actively going around hunting for questionable deals.

And if an occasional bad post goes up due to whatever reason, it's not the end of the world, and I don't think there is any reasonable risk to worry about. It's very bad, however, if it is felt that it's an "anything goes" site (which can happen, over time), because that will sooner or later get someone's attention.

In Common Law it's as much about what you do as what you don't do. If you go about acting as a fireman (perhaps you're a volunteer fireman in a small town), you can be held to be in neglect if you fail at your duties. That's why we have such things as "good samaritan laws", which provide an exemption to Common Law for those that help others in an emergency.

Newspapers don't knowingly promote illegal activities; it's all about intent. The Mayor's note at the sale site (no SW without CD) is a solid indication of intent.

Not to make too big a deal out of it; this is a tight community and runs remarkably well. I'm sure the Mayor would shut down the Trading Post if things got out of hand, and nobody wants that.
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Old Feb 5th, 2003, 06:25 PM   #3
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actually the note on the 'Trading Post' would be much better if it indeed did read "no SW without CD" but it does not.

the note does state;

"Please note, all Mac systems sold with extra software MUST indicate that they come with the original CD's and manuals. "

The above note does not cover system software CDs and only includes "extra" software when sold with a Mac system.

GG's caveat with the modification of "original CD(s)" would present the broadest coverage.

so the final note would read;

"All software must be accompanied by the original CD(s)"

This covers;
- all software only sales
- sales of hardware that indlude software
- system software (OS)
- software that is being given away or bundled with a sale

I am not too sure about needing the "manuals" part.
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Old Feb 5th, 2003, 06:49 PM   #4
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Good idea. Time to stop the distribution of illegal/pirated software.
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Old Feb 5th, 2003, 10:38 PM   #5
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