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- #help.tut PRESS ENTER FOR HELP
- #define.stb Definitions of legal terms
- TUTORIAL-- FILE TRANSFER LIABILITY
-
- A few stories about the law. Don't shut down your BBS and hide in
- a sanitized packing crate. Although BBS systems have significant
- liability in these areas, the liability is manageable-- with the
- proper disclaimers and procedures, which will occupy the second
- half of this lesson.
-
- Scenario # 1-- The awful download
-
-
- A BBS receives an upload of an innocuous looking program. Because
- the sysop is careful, all files are scanned with industry
- standard virus detection programs. The file passes the check and
- is posted for download.
-
- The innocuous program is in fact virus free. However, it is so
- badly written (an array is dimensioned too large, and bumps into
- space occupied by other programs and the operating system) that
- it locks up the computer of the user. As a result, the user
- doesn't finish a job on time and loses $ 1,000.
-
- Who is liable for the negligent programming? The answer may
- surprise you---
-
- the author, and quite arguably the BBS itself!
-
- If the user has "donated" or "paid" a fee for use of the BBS, the
- download can be interpreted as a sale of a program. The Uniform
- Commercial Code provides that unless warranties are disclaimed
- that all products sold by "merchants" carry a warranty of
- "merchantability" and other warranties. Under the law of
- "products liability" a person who creates, as well as a person
- who DISTRIBUTES items that will be used by consumers
-
- Who is a merchant? Any one with specialized knowledge within a
- field is a merchant. Thus, a rug seller is charged with knowing,
- and behaving like someone who knows the rug trade. As a BBS
- operator, you are arguably a merchant in the area of computers
- and software.
-
- Warranty liability can be lessened, or even excluded by the
- proper use of disclaimers. However, under the modern law of
- products liability, warranty liability cannot be disclaimed if
- a party introduces a product into the stream of commerce and it
- is used without inspection for flaws.
-
- Therefore, if the BBS system requires that users inspect the
- program for flaws, it is no longer subject to products liability
- under the products liability law. Therefore, our disclaimers
- require that the user test the file himself.
-
-
-