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RE: Compromised machines liable for damage?

  • From: Hannigan, Martin
  • Date: Mon Dec 26 23:37:29 2005

Title: RE: Compromised machines liable for damage?

Botnet code is open source, as far as I know.  Maybe not by design, but I have gigs of it and its all googleable.

Not being a lawyer, I'd guess the plaintiff size is highy debateable based on source or destination.


 -----Original Message-----
From:   Owen DeLong []
Sent:   Mon Dec 26 23:32:04 2005
To:     Hannigan, Martin; Joseph Jackson
Cc:     NANOG
Subject:        RE: Compromised machines liable for damage?

RIAA is a very different context from what we are talking about here.

First, the number of people getting attacked from Open Source systems
is very small, so, you have a very small class of plaintiffs.  Second,
said class of plaintiffs is probably not as well funded as RIAA.

OTOH, the number of people/organizations being attacked from Micr0$0ft
based systems is relatively high, so, a large class of plaintiffs,
and, some of them being enterprises are relatively well funded.

Second, in the case of RIAA, it is businesses suing to do what they
perceive as protecting their profit stream, and, they know they
are suing a collection of defendants that are relatively poorly
funded and have no organization.  In the case of Open Source, I
think there is a pretty good track record of the community coming
to the aid of those that get sued for various reasons (DeCSS comes
to mind).

Sure, it's easy to sue someone who doesn't have any money, but,
there's no point in doing so.  Frankly, it's not the people with
no money that are at risk here.  It's the people with some money
and some assets.  If you have nothing, you're pretty safe ignoring
a civil suit because you have nothing to lose.  Frankly, if RIAA
were to sue me, it wouldn't cost me $250,000 to fight it.  It
might cost me a few thousand if I chose to involve a lawyer in
some portion of the process, but, initially, I think I could
make their life difficult enough to get them to go away without
involving a lawyer.

I've already made MPAA/Disney go away twice without a lawyer.  Admittedly,
they went away before even filing a suit, so, technically, I haven't been
sued, but, I've been threatened by them, and, I'm sure if I'd
buckled under or failed to confront them appropriately, I would
have either gotten sued or ended up handing over money.

The costs of defending a suit are $0 until you hire a lawyer.


--On December 26, 2005 11:18:46 PM -0500 "Hannigan, Martin"
<> wrote:

> In the general sense, possibly, but where there are lawyers there is
> always discoragement.
> Suing people with no money is easy, but it does stop them from
> contributing in most cases. There are always a few who like getting sued.
> RIAA has shown companies will widescale sue so your argument is suspect,
> IMO..
>  -----Original Message-----
> From:   Owen DeLong []
> Sent:   Mon Dec 26 23:11:13 2005
> To:     Hannigan, Martin; Joseph Jackson
> Cc:     NANOG
> Subject:        RE: Compromised machines liable for damage?
> I've seen this argument time and again, and, the reality is that it is
> absolutely
> false.
> In fact, it will do nothing but encourage freeware.  Liability for a
> product
> generally doesn't exist until money changes hands.  If you design a piece
> of
> equipment and post the drawings in the public domain, you are not liable
> if someone builds it and harms themselves.  You are liable if someone pays
> you for the design, because, the money changing hands creates a "duty to
> care".
> Outside of a "duty to care", the only opening for liability is if they
> can prove that you failed to take some precaution that would be expected
> of any "reasonably prudent" person.
> So, liability for bad software and the consequences it creates would be
> bad for the Micr0$0ft and Oracles of the world, but, generally, very good
> for the Free Software movement.  It might turn out to be bad for
> organizations
> like Cygnus and RedHat, but, that's more of a gray area.
> As to the specific example cited...
> If no update has been released, in the case of Open Source, that's no
> excuse.
> You have the source, so, you don't have to wait for an update.  In the
> case
> of closed software, then, I think manufacturer liability is a good thing
> for the industry in general.
> Owen
> --On December 26, 2005 10:07:20 PM -0500 "Hannigan, Martin"
> <> wrote:
>> If you want to choke off freeware(gnu, et. Al), sure, go after them. I
>> doubt the licensing agreement allows it though. (IANAL).
>> I think all you'd do is encourage people to write more music about
>> 'freeing the software'. I'd rather not be stricken in that fashion.
>> I think that angle is DOA.
>> Martin
>>  -----Original Message-----
>> From:   Joseph Jackson []
>> Sent:   Mon Dec 26 03:13:02 2005
>> To:     Hannigan, Martin
>> Cc:     NANOG
>> Subject:        RE: Compromised machines liable for damage?
>> What about the coders that write the buggy software in the first place?
>> Don't they hold some of the responsibility also?  IE I am running some
>> webserver software that a bug is found in it.  Attackers use that bug in
>> the
>> software to generate a DOS attack against you from my machines.  No
>> update has been released for the software I am running and/or no warning
>> as been released. You sue me I sue the coders.  What a wonderful world.
>> (I'm not for this but its another side of the issue.)
>>   _____
>> From: [] On Behalf Of
>> Hannigan, Martin
>> Sent: Sunday, December 25, 2005 9:22 PM
>> To: Steven M. Bellovin
>> Cc: Dave Pooser; NANOG
>> Subject: Re: Compromised machines liable for damage?
>> Yes, I agree. As usual, I too am 'IANAL'.
>> Marty
>>  -----Original Message-----
>> From:   Steven M. Bellovin [
>> <> ]
>> Sent:   Sun Dec 25 23:52:27 2005
>> To:     Hannigan, Martin
>> Cc:     Dave Pooser; NANOG
>> Subject:        Re: Compromised machines liable for damage?
>> In message
>> <
>> om>, "Hannigan, Martin" writes:
>>> Dave, RIAA wins almost 100pct vs p2p'ers ir sues. Its an interesting =
>>> dichotomy.
>> "Wins" is too strong a word, since I don't think any have gone to
>> court -- see
>> <>
>> as my source.
>> Besides, it's a very different situation.  For my take on liability
>> issues -- note that I'm not a lawyer, and note that this is from 1994
>> -- see
>> <>
>>                 --Steven M. Bellovin,
>> <>
> --
> If this message was not signed with gpg key 0FE2AA3D, it's probably
> a forgery.

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