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What Files are Legal for Distribution on a BBS?


Copyright (C) 1989 Exec-PC All Rights Reserved

From Exec-PC Multi-user BBS, 414-964-5160 Bob Mahoney, SYSOP

Software that is a commercial product, sold in stores or via mailorder, that does not contain a statement saying it is OK to give copies to others is NOT legal for distribution on a BBS.

Example: Lotus 1-2-3 is a commercial product, it is copyrighted, and the copyright notice states you MAY NOT copy it for others.

Example: PC-Write (the Shareware version) is also copyrighted, but the copyright statement clearly states you MAY make unlimited copies for your friends.

TRICKS TO MAKE AN EDUCATED GUESS: Sometimes it is difficult to guess whether or not some software or diskette is legal for BBS distribution. There are a few obvious guidelines I use on the Exec-PC BBS:

There is no documentation: Probably an illegal copy. A Shareware author will always provide documentation with his product. If he does not, nobody will be willing to make a monetary contribution to his efforts. If the documentation takes the form of a very short (one or two screen long) and sketchy README file, be suspicious. The software is probably a hack (illegal pirated copy) of a commercial product, and someone wrote up a small hint file to help other pirates run the software.

The software is too good to be true: It probably IS too good to be true! A good game, a good database, a good utility of any type, requires at least dozens of hours to write. The really good stuff requires thousands of hours to write, sometimes dozens of MAN YEARS to write. Nobody is going to give this away for free! If you get a copy of a game and it seems to good to be true, I bet it is an illegal copy.

The software does strange things to your disk drives: For example, when it is run, the A: drive or B: drive spin for a moment, even though there is no disk present. This sometimes indicates the software is looking for a key disk, but someone has modified the software so the key disk is not needed. This is probably illegal software.

The software does not have an easy escape to DOS, no EXIT command: This usually means the software is illegal, someone has hacked it to make it run, but it was too difficult to add a proper escape to DOS to the commercial product.

DON'T GET ME WRONG, I am making it sound as if ALL software is illegal. This is not the case. It is usually very easy to recognize a fine, legal package, since the author is proud of his work and usually puts his name, his favorite BBS number, a disclaimer, a Shareware notice, or some other hint into the package. It may be as simple as an initial screen saying "This is Shareware written by so-and-so, this is Shareware, if you like it please send $XX to the following address", and other text of that type.

If in doubt, ask the Sysop!





PIRATE reprints the following that arrived over the BITNET lines. Following with our policy, it is printed exactly as received. Only the date of the conference was removed.



Editors' Note: The following conference took place on GEnie. The only changes we have made to any of this text is the format and spelling errors. An additional note, I just finished reading the book. It is interesting and I encourage all BBS operators to purchase it. If you are interested contact: LLM PRESS, 150 Broadway (Suite 607), New York, NY 10038. (212) 766-3785)


<[Holly] HS> Welcome to our formal conference with Jonathon Wallace,

<JON.WALLACE> Thanks very much for inviting me….

<[Holly] HS> Can you tell us a little about yourself and your

book before we start?

<JON.WALLACE> I am a lawyer in private practice in New York City specializing in computer related matters including BBS law. I am the co-author with Rees Morrison, of SYSLAW: The Sysop's Legal Manual, and editor of The Computer Law Letter, a bimonthly newsletter.

<[Mel] NIGHTDIVER> Jon, would you talk a bit about where free speech stops and libel begins. We obviously want to be able to criticize a product freely but I guess we have to stop at calling the developer names or spreading rumors that he is going bankrupt. Where does libel start? and what is the sysops liability for allowing such messages to stand?

<JON.WALLACE> Libel varies from state to state. In many places its a knowingly false statement. In others it may even be a negligently false statement. The responsibility of a sysop is, in my opinion about equivalent to the liability of a newspaper publisher for a comment someone else makes in his paper. Constitutional law says that a public figure can only recover against a newspaper for a libel done with "actual malice".

<[Mel] NIGHTDIVER> For our purposes who would you say is a public figure a developer pushing his product? A publisher of an online magazine? The sysop?

<JON.WALLACE> There is no precise definition. Any of those might be held to be a public figure, as would your town councilman, but not your next door neighbor.

<[Mel] NIGHTDIVER> I've heard the sysop's liability in libel compared to a news stand's liability but that boggles my mind because I never heard of a newsstand claiming a compilation copyright. Would you comment on the sysop's position?

<JON.WALLACE> Ever since there have been BBS's, people have debated whether a sysop is a publisher, a newsstand, a common carrier, a bartender, etc. A sysop is NOT a common carrier (obligated to carry all messages, can't control content) Nor is a sysop a newsstand (too passive). I think a sysop is essentially a sort of publisher. She has the right to edit and control the contents of the BBS.

<DAVESMALL> I've got a few questions, but I'll try not to hog things for others. Awhile ago, I ran into a particularly nasty "anarchy" BBS in New York. It offered files on everything from literally how to poison people to "kitchen improvised plastic explosives". Is offering info like this legal? Is there any legal precedent?

<JON.WALLACE> Dave, the law says that "information doesn't kill people.. people kill people." However distasteful, describing how to make poisons is constitutionally protected speech.

<[Ralph] ST.REPORT> Evening Counselor, nice to see that information is information and not murderous non-sense. My question is, what recourse, if any does an individual have when they find that certain information has been labeled "overly informative" and has been censored as a result?

<JON.WALLACE> Ralph, if you mean censored by the sysop the user really has no recourse. As I said, a sysop has the right to edit, modify and delete the BBS's contents.

<[Ralph] ST.REPORT> I see, well a sysop was not the cause in this situation….in fact the sysop was quite fair about the entire matter… much more so than the individual…..I mean as individual to individual.

<JON.WALLACE> Who censored the message, then?

<[Ralph] ST.REPORT> The message was deleted as a result of the ensuing hulabaloo ←? voluntarily by me.

<JON.WALLACE> Ralph—The sysop is the final arbiter in such cases. It is only censorship when the government intervenes to prevent speech.

<[Ralph] ST.REPORT> I agree, in effect I censored myself to avoid more controversy, I was looking for your opinion and I thank you for your time.

<BOB.PUFF> Yes I was wondering if you could comment on self-maintaining BBSs that automatically validate uploaded files. Is this illegal in itself, or could the sysop be in trouble if a copyrighted file is up for a bit of time till he realizes it?

<JON.WALLACE> Bob, there are no precise rules in this area yet. My best guess is that the sysop has an obligation to exercise due care. For that reason I would try and set things up so that a pirated file would be discovered in under a couple of days. Therefore, the idea of a self-validating BBS makes me nervous.

<BOB.PUFF> I see. right - but its that couple of days that the file might be up. ok something to think about. thanks.

<WP.DAVE> Jon, do you consider your SYSLAW book to apply much to information service sysops, or is it 95% for the private BBS operator?

<JON.WALLACE> The book was written for the BBS sysop, but much of what's in it applies equally to service sysops…e.g., the discussion of copyright, libel, etc.

<DAVESMALL> Hi again. As I understand it, the libel law says (basically) that to commit libel, you have to say something false, know it's false, and do it with malice intended. First, am I right? (*grin*) Second, does that apply different to public figures vs. mere mortals?

<JON.WALLACE> Dave, the rules you stated are correct for a media defendant (newspaper, etc.) libelling a public figure. If the "libeller" is a private citizen, the states are free to hold you to a mere negligence standard.

<DAVESMALL> Can you expand on "negligence"?

<JON.WALLACE> Yes a careless false statement, e.g. something you didn't bother to verify.

<CRAIG.S.THOM> Along the lines of the self-validating files…what if users upload copyrighted text into the message bases? Song lyrics, documentation, that type of thing? Messages are never held for validation.

<JON.WALLACE> I believe a sysop should arrange to read every new message every 24 hours or so. If its a big message base, get some assistant sysops to help. Of course, copyrighted text may not be easy to recognize, but if you do recognize copyrighted material it should be deleted unless its a fair use (e.g., brief quote from a book or song, etc.)

<[John] JWEAVERJR> Can you comment on the differences between the legal standards for libel and slander? And, in particular, which category does this RTC (as a "printed record" of a live conversation) fall?

<JON.WALLACE> Slander is spoken libel is written I am fairly sure that all online speech will be classified as libel, not slander. Frankly, I am more familiar with the libel standards, which we have been discussing than with slander, where they differ.

<DAVESMALL> I did come in a bit late, if this has already been answered; where might I find your book, and what's it retail at?

<JON.WALLACE> The book is $19 plus $2 p&h from LLM Press 150 Broadway, Suite 610, NY NY 10038.

<DAVESMALL> Okay back to libel. Are editors of magazines in general held responsible for the content of their magazine, or is the writer of a given article deemed libellous that's held responsible? Or both?

<JON.WALLACE> Potentially both.

<DAVESMALL> The standards would depend on if the libeller (sounds like a referee! grin) was a public figure or private person, also? e.g., negligence vs. malice?

<JON.WALLACE> The US Constitution imposes the standards we discussed for media defendants, and leaves the states free to make their own laws in all other cases.

<DAVESMALL> Since networks are interstate, which states' laws applies?

<JON.WALLACE> Dave, thats something the courts will have to settle. Magazines have been successfully sued in states where they sold only a few copies.

<[Mel] NIGHTDIVER> I understand there have been some cases regarding private messages in a BB as opposed to public messages. Does that mean that if someone sends me Email here on GEnie and I forward it to someone else, that I could be in trouble?

<JON.WALLACE> Mel, we are getting into a whole new area here. The Electronic Communications Privacy Act (ECPA) which protects the privacy of email. In the case you described. There would be no liability under ECPA, because the recipient of the message has the right to make it public.

<[Holly] HS> I have a related question, Jonathon…are you familiar with Thompson v. Predaina? (The case that never was… *grin*)

<JON.WALLACE> Yes, I read the pleadings, and have talked to and been flamed by, Linda Thompson <grin>.

<[Holly] HS> Can you summarize the case a bit for the rest of us and give us your opinion? (I happen to personally know both parties… Linda was a friend of mine. Bob is a friend of mine. Key word: "was") Everyone's been flamed by Linda Thompson. *grin* Linda sued Bob under the ECPA claiming that he had disclosed private messages and files of hers to the public. He was not the recipient of the files or messages and, if the facts as stated in the complaint are true, it seems as if there was a technical ECPA violation. The case never went any further because (I am told). Predaina declared bankruptcy (since you know him, you can clarify if this turns out not to be the case).

<[Holly] HS> Bob did declare bankruptcy, which was a wise move. I didn't read the complaint, however, I also know that when Linda (and Al) had a BBS, they were "guilty" of exactly what I understood Bob did. (Allegedly)

<JON.WALLACE> I've often thought it was a too drastic move on his part. Based on the information I had, I doubted the case would have resulted in drastic damages, even if there was a technical violation.

The moral of the story: Don't disclose private mail of which you are not the sender or recipient.

<[Holly] HS> I think it was very precautionary on Bob's part. And, if I understand what happened, the case was dropped because Linda was suing partially on the grounds of character defamation which allowed Bob to dredge up some of Linda's rather tawdry past, allegedly. (I don't think I'm spelling that right. It looks wrong. :-) Thanks, Jonathon… I have a few more for later… :-)

<DEB> Hi Jon, this is deb! Christensen, I take care of the Commodore and Amiga areas here on GEnie. My question is an unresolved one about copyrights and music. Are there any 'fair use' guidelines which affect musical arrangements to computer transcriptions which people upload and distribute for their electronic friends?

<JON.WALLACE> Deb….The upload of a copyrighted song or image in electronic form is a copyright violation. I have never yet heard of a case of a court finding such an upload to be a "fair use" mainly because courts haven't really yet dealt with the issue of uploads at all. However, I think the argument for a fair use is slim, considering that the standards of fair use include whether the use….is commercial, and how much of the work is copied. An upload to a commercial service of an entire song or image, for download by people paying connect charges, seems like a pretty clear copyright infringement.

<DEB> So, a musician does not have a right to arrange music and perform it for his friends? Is it the uploading that is a violation or the computer arrangement for the performance?

<JON.WALLACE> A private performance is not a copyright violation but there is nothing private about an upload to a commercial service with more than 100,000 users.

<DEB> And to a public BBS?

<JON.WALLACE> Public BBS: I would say its the same thing, even though not quite as commercial.

<DEB> Aha, so it isn't anything to do with cost involved. It is the actual transcription which is the problem? I *know* digitized music is a problem but had always presumed we had the same right to make an arrangement on a computer as we did on paper. :-(

<JON.WALLACE> Deb, I would say you do have the same right to make an arrangement, just not to distribute it to other people.

<BOB.PUFF> What are the legalities of telephone companies charging business rates for BBS telephone lines? I understand they have either proposed it, or tried it in some places. Your comments?

<JON.WALLACE> It has happened a lot, but I understand in several places concerted efforts to communicate with the telco got them to back down. Not aware if anyone ever mounted a legal challenge, though.

<BOB.PUFF> I see. I don't see how a bbs constitutes the charge, but I guess there is a large grey area there.

<JON.WALLACE> The telco's argument was that the BBS was providing a quasi-commercial service. If you look at any BBS list, you will see a proportion of company sponsored BBS's that confuse the issue.

<DOUG.W> Jon, earlier you stated that the recipient of EMail was free to distribute that mail. Is there any way to ensure privacy in EMail? Would a Copyright notice on each message prevent further distribution?

<JON.WALLACE> I assume you are asking if there is a way to keep the recipient of a message from making it public.

<DOUG.W> Yes.

<JON.WALLACE> The answer is not really. Putting a copyright notice on might give many people pause, but suppose someone violated that copyright, what are the damages?

<DAVESMALL> Got two for you. First, with BBS's and networks being so (relatively) new, are there a large number of libel cases of stuff going over the nets, as opposed to say magazine cases? E.g., is it a growing practice? *grin*

<JON.WALLACE> I am only aware of one case of online libel, the one discussed in my book, the Dun & Bradstreet case (and I guess Thompson v. Predaina also included that element).

<DAVESMALL> Second, do you find that judges and juries in such cases (jury assuming a jury trial, of course) have a great deal of "learning curve" to go through about networks? Most people I know outside computers don't know a genie from a compuserve from a hole in the wall. they can't imagine what the BBS world is like. Does this make such a case tougher/easier on an attorney?

<JON.WALLACE> I frequently will try a computer case to the judge, waiving the jury demand less education to do but I wouldn't necessarily do that if I were the defendant in a libel case. Depends what part of the country you're in; in Manhattan, you could probably get a jury that knew what a modem was.

<DAVESMALL> And if not, it would probably be prudent to try to educate one vs. six ? Fair enough.. okay I'm done

<JON.WALLACE> It really depends on the circumstances..deciding when to go for a jury also has to do with how much you need, and can exploit, a sympathy factor.

<[Holly] HS> I have one last question myself before we wrap up…. (which is not intended as a pun with regard to my question… *grin*) Shrink wrap licenses, are they enforceable? Legal?

<JON.WALLACE> There has been some disagreement on this but my personal opinion is that the average shrink wrap license would not stand up. It was never negotiated, never really agreed to and can't convert what is obviously a sale into something else any more than calling a car a plane will change it into one.

<[Holly] HS> However, if it is visible before the buyer actually buys then can a presumption be made that they have read and agreed?

<JON.WALLACE> There are still other problems. The buyer hasn't dealt with the publisher, but with a retailer. There is no "privity" of contract.

<[Holly] HS> "privity" meaning… ?

<JON.WALLACE> No direct contractual relationship between publisher and purchaser, despite the fiction that the license purpotts to create.

<[Holly] HS> Then a company who insists that this disk and this software still belongs to them, you don't feel it is enforceable?

<JON.WALLACE> It would depend on the circumstances, but if you buy an off the shelf product at Software to Go, in my opinion, you have purchased the copy even if there is a shrink wrap license that says you have only licensed it.

<[Holly] HS> Interesting… another point of licensing… have you read the Apple licensing agreement?

<JON.WALLACE> I read it some time ago, when the case started.

<[Holly] HS> It states that Mac ROMs can only be used in an Apple machine. Although there is contention that the ROMs are the heart of the machine, so whether they goest, so goest the machine.

<JON.WALLACE> Sorry, I thought you meant the Apple/Microsoft license.

<[Holly] HS> For those of us who use an emulator, like Spectre or Magic Sac, it could be an important point.

<JON.WALLACE> The question is a very tricky one. On the whole, it would be….difficult to prevent a legitimate purchaser of a ROM from doing anything he wanted with it, including sticking it in another machine. But I haven't seen the license you refer to.

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