Re: Compromised machines liable for damage?

[Marshall Eubanks <tme () multicasttech com>]

There was a lot of discussion about this in the music / technology /  
legal community
at the time of  the Sony root exploit CD's - which
I and others thought fully opened  Sony for liability for 2nd party  
attacks. (I.e., if a hacker uses the Sony
root kit to exploit your machine, then Sony is probably liable,  
regardless of the EULA. They put
it in there; they made the attack possible.) IANAL, but I believe  
that if a vendor has even a
partial liability, they can be liable for the whole.

I suspect that eventually EULA's will prove to be weak reeds, in much  
the same way that manufacturers may be
liable when bad things happen, even if the product is being grossly  
misused. My intuition says that
unfortunately somebody is going to have to die to establish this, as  
part of a wrongful death suit.
With the explosion in VOIP use, this is probably only a matter of time.

Regards
Marshall Eubanks


On Dec 27, 2005, at 8:55 AM, Owen DeLong wrote:

> > The reason there have not been any lawsuits against vendors is  
> > because
> > of license agreements -- every software license I've ever read,
> > including the GPL, disclaims all warranties, liability, etc.  It's  
> > not
> > clear to me that that would stand up with a consumer plaintiff, as  
> > opposed
> > to a business; that hasn't been litigated.  I tried to get around  
> > that
> > problem for the moot court by looking at third parties who were  
> > injured
> > by a problem in a software package they hadn't licensed -- think
> > Slammer, for example, which took out the Internet for everyone.
> Yes, I think this is the only way it will work.  Plaintiffs that  
> are not
> subject to the EULA will have to sue the manufacturer of vulnerable
> software installed on remote systems that attack their site.   
> Otherwise,
> the liability waivers they signed make it much harder.  Of course,  
> interestingly,
> automobile manufacturers cannot get around having to build cars that
> meet safety standards regardless of waivers customers may sign.   
> Perhaps
> what we need first is a consortium to agree on a set of standards for
> software security followed by someone like Ralph Nader doing the
> "Unsafe at any clockspeed" campaign.
>
> > The issue of liability based on operational practices is  
> > untested.  As
> > I concluded in that book chapter from 1994, I (and the attorneys who
> > helped me (a lot) with it) felt that there may very well be cause  
> > for a
> > lawsuit.  However, to the best of my knowledge there have been no  
> > court
> > rulings on this issue.  Unless and until that happens, we're just
> > guessing.  I'll give two short quotes that illustrate why I'm  
> > concerned.
> > This one is from a standard textbook on tort law:
> Yep... I think that is true.  However, unless and until someone  
> steps up
> and actually does it (and frankly, I think the effective strategy here
> would be coordinating a large number of injured parties in small  
> offices
> and residences to sue in small claims court at roughly the same time),
> all we'll be able to do is guess.
>
> >         The standard of conduct imposed by the law is an external  
> > one,
> >         based upon what society demands generally of its members,
> >         rather than upon the actor's personal morality or individual
> >         sense of right and wrong.  A failure to conform to the  
> > standard
> >         is negligence, therefore, even if it is due to clumsiness,
> >         stupidity, forgetfulness, an excitable temperament, or even
> >         sheer ignorance.  An honest blunder, or a mistaken belief  
> > that
> >         no damage will result, may absolve the actor from moral  
> > blame,
> >         but the harm to others is still as great, and the actor's
> >         individual standards must give way in this area of the law to
> >         those of the public.  In other words, society may require  
> > of a
> >         person not to be awkward or a fool.
> So, does that mean that if most of society is ignorant enough to  
> tolerate
> insecure buggy software, we must accept that as the standard for  
> software
> performance?  That is an unfortunately low barrier indeed for a  
> profession
> like software development.  In general, professional liability is  
> different
> from general civil liability.  Once money changes hands, you have a  
> much
> greater "duty to care" about the potential harm caused by your  
> "product"
> than an individual citizen.
>
> For example, a guy that pours gasoline into his gopher holes and  
> lights
> it is an idiot.  However, as long as everything he blows up is his own
> and he harms noone else, he's still just an idiot, but, not liable.
>
> However, if he packages gas cans and matches together and sells them
> with instructions as a "Gopher Eradication Kit", he gets to be liable
> for the damage to all the houses of all the people dumb enough to
> use his product, and, any neighbors unfortunate enough to live within
> the blast radii.
>
> Let's face it, some software vendors are selling the moral equivalent
> of a minivan with no seatbelts and no airbags.
>
> > The second, a quote from a 1932 (U.S.) Court of Appeals opinion, was
> > for a case where some barges sank because the tugboat pulling them  
> > had
> > no radio receivers, and hence didn't know the weather forecast:
> >
> >         Indeed in most cases reasonable prudence is in face common
> >         prudence; but strictly it is never its measure; a whole
> >         calling may have unduly lagged in the adoption of new and available
> >         devices.  It may never set its own tests, however persuasive be its
> >         usages.  Courts must in the end say what is required; there are
> >         precautions so imperative that even their universal disregard will
> >         not excuse their omission. ...  But here there was no custom at all
> >         as to receiving sets; some had them, some did not; the most that
> >         can be urged is that they had not yet become general.
> >         Certainly in such a case we need not pause; when some have thought
> >         a device necessary, at least we may say that they were
> >         right, and the others too slack.
> >         ...
> >         We hold [against] the tugs therefore because [if] they had been
> >         properly equipped, they would have got the Arlington [weather]
> >         reports.  The injury was a direct consequence of this
> >         unseaworthiness.
> >
> > Again, though, this has never been litigated for ISP-type issues.
>
> Those will be interesting cases as well if they are ever tested,  
> but, I
> think they will actually be more complex than injured third parties
> suing software VENDORS over vulnerable software which later caused
> harm.  Again, I think that the David v. Goliath nature of the majority
> of injured parties v. software vendors means that a large highly
> visible class action or high-profile suit is unlikely to meet with
> much success.  However, given the relatively low risks associated
> with filing in small claims court in most jurisdictions and
> extremely low filing costs associated, I think it would be very
> interesting to see a coordinated attack of this nature played out
> in the small claims courts across the country.  Even if the software
> vendors were able to win each and every case, the costs of fighting
> them would be impressive and would send a pretty clear message that
> we, as a society, are fed up and won't take it any more.
>
> Owen