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767 lines
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------------- continued from previous message --------
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PART 9
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*********************************************************************
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CHAPTER 8 -SETTING UP FILE LIBRARIES
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*********************************************************************
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Q: Where can I get an assorted selection of shareware/freeware files
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to start up the file libraries on my BBS?
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=-=-=-=-=-=-=-=-=-=-=-=-=
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8.01 - Shareware vendors
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=-=-=-=-=-=-=-=-=-=-=-=-=
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- Public Brand Software
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=======================
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Public Brand Software BBS, (317)856-2087
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Commercial Shareware Vendor
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Public Brand Software, Indianapolis, IN
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- Megafile Distribution System - Eastern Shore Communications
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============================================================
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The Megafile Distribution System (MDS) is a sysop-only file
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collection system designed to fulfill the needs of established
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and growing bulletin board systems.
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Long-distance calling for file collection is expensive. Those
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bulletin board systems able to afford this type of file collection
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have the luxury of being current, collecting files on the day that
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they are released.
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For those systems not able to afford the long-distance luxury, CD-ROMs
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have traditionally been used to increase a bulletin board system's
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capacity, with the drawback that files are four to six months old when
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they are placed online.
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MDS fits in between these two methods. File collection is done in the
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same manner as the large systems do, each and every day. Depending on
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the plan you choose, one or two 60-megabyte tapes are delivered
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to you each week at consistent 3- to 4-day intervals
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(e.g., Monday/Thursday, Tuesday/Friday, Wednesday/Saturday, etc).
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This turnaround maintains currency in your file collection while
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at the same time keeping your collection costs low.
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All files are virus checked using two different programs, all known
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BBS advertising is removed, and AV-stamped or ARJ-security-envelope
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file integrity is maintained wherever possible. File listings are
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delivered in both FILES.BBS and PCBoard formats, allowing their
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immediate addition to your system without further processing.
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MDS pricing is based on volume, reflected below:
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-------------------------------------------------
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One-Week Package: (Cost Per Tape in) (Cost Per Tape in)
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----------------- (Canadian Dollars) (U.S. Dollars)
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(Total Order Value) (Total Order Value)
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(in Brackets) (in Brackets)
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------------------ ------------------
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Single Tape $37.50 ($37.50) $26.75 ($26.75)
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Total Number of Tapes in Package: 1
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Two Tapes $28.50 ($57.00) $20.35 ($40.70)
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Total Number of Tapes in Package: 2
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------------------------------------------------------------------
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4-Week Package: (Cost Per Tape in) (Cost Per Tape in)
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----------------- (Canadian Dollars) (U.S. Dollars)
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(Total Order Value) (Total Order Value)
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(in Brackets) (in Brackets)
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------------------ ------------------
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Single Tape $30.00 ($120.00) $21.50 ($86.00)
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Total Number of Tapes in Package: 4
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Two Tapes $22.50 ($180.00) $16.00 ($128.55)
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Total Number of Tapes in Package: 8
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-------------------------------------------------------------------
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13-Week Package: (Cost Per Tape in) (Cost Per Tape in)
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---------------- (Canadian Dollars) (U.S. Dollars)
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(Total Order Value) (Total Order Value)
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(in Brackets) (in Brackets)
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------------------ ------------------
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Single Tape $25.00 ($325.00) $17.85 ($232.15)
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Total Number of Tapes in Package: 13
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Two Tapes $18.75 ($487.50) $13.40 ($348.20)
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Total Number of Tapes in Package: 26
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Rates are calculated based on customer-supplied tapes, deliverable
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with prepayment. C.O.D. and credit-card orders are not accepted.
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All shipping costs (your choice of carrier) and applicable taxes
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extra.
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For further information, please contact:
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------------------------------------------
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Richard Munro
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Eastern Shore Communications
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Voice: 416-428-1056
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BBS: 416-683-7368
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FidoNet Address: 1:229/112
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Internet: richard.munro@westonia.com (Richard Munro)
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===================
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HOF TAPE NETWORK
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===================
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- Get 100-120 Megs Of Files On Tape For $14.99
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- All Files Are No Later Then 4 Months Old
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- Files Range From PCBoard, Windows, Games, Utilities, etc..
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- Each Directory Has It Own FILES.BBS
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- All Files Have Been Scanned For Viruses
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- You Can Either Send HOF Tape Network The Tape Or Buy One From Them.
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- If You Send HOF Tape Network A Tape It Must Be Formatted
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- HOF Tape Network Ships 2nd Day Air
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- There Is A New Issue Every Month. That Means 100-120 Every Month For
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You or Your BBS.
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- Orders Can Be Taken via: Netmail, Internet E-Mail, or Via BBS
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- New Issues Are Shipped the 1st Of Every Month
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Contacting HOF Tape Network
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---------------------------------------------
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Fidonet: 1:2215/600 or 1:2215/610
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Internet: hoftape@scpcug.com
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BBS: (216)493-3522 or (216)492-2871
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NUMBER YOU WISH TO PURCHASE: ___ @ $14.99
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TAPES WISH TO PURCHASE : __ @ $15.00
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SHIPPING / ORDER : ___ @ $10.00 / TAPE
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=========================================
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8.02 - Encouraging your users to upload
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=========================================
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- Topic 8.02 will be available in future versions of
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the BBS FAQ.
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*********************************************************************
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CHAPTER 9 - LEGAL ISSUES FACING THE BBS SYSOP
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*********************************************************************
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Version 0.9 - June 24, 1994.
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Copyright (c) 1994 Carl J. Elitz
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9.0 Introduction
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================
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This chapter contains a general discussion of some of the
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legal risks facing those who run computer bulletin board systems
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(BBS' or boards), along with some suggestions for reducing those
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risks. It is not yet in the familiar Q&A format, but may be
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modified in future revisions.
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Please consider the discussion that follows for educational
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purposes only and not as a substitute for legal advice. The
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suggestions made below should be used only as a starting point for
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your own consideration of the issues presented and may not be
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suitable for your individual situation. If you need legal advice,
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consult with an attorney licensed to practice in your jurisdiction.
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Those with a practical interest in the subject are referred to
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Lance Rose's and Jonathan Wallace's book, SYSLAW (2nd Ed. 1992),
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(available by calling PC Information Group at 1-800-321-8285). At
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present, this is the definitive book on the subject and a good
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source of information for the new or experienced sysop. Cost is
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about $38.
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A more scholarly treatment of many of the same issues can be
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found in a law review article written by David J. Loundy, "E-Law:
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Legal Issues Affecting Computer Information Systems and System
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Operator Liability," 80 Alb. L. J. Sci. & Tech. Vol 3 (1993).
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Loundy's article is available in many law libraries and on the
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internet via anonymous ftp from the Electronic Frontier Foundation:
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ftp.eff.org (path /pub/EFF/policy/Legal/e-law.paper).
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Please note: the following does not necessarily apply to BBS'
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running outside the United States. Obviously, the laws of other
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jurisdictions may be quite different.
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Finally, please recognize that this chapter is an evolving
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document in its early stages of development. Suggestions for
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improvement are welcome. The author can be reached at either of the
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following internet address sites: carl.elitz@n9csa.com or
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reds@ripco.com.
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9.1 The Legal Risks
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===================
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Your legal exposure as a BBS sysop is not insignificant. Even
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if your intentions are good, mistakes or errors in judgment expose
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you to both civil and criminal liability. This is due, in large
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part, to the fact that there will be so many people calling your
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board, each with his or her own agenda. If you fail to educate
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yourself on the basic risks, your exposure increases dramatically.
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9.1.1 Civil Lawsuits
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--------------------
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Filing a civil suit in the United States is a relatively
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simple and inexpensive process for a plaintiff, usually costing
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less than the latest version of your favorite word processing
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software. Indeed, a caller or other person who believes she has
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a case against you may find an attorney willing to represent her
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for a "contingency fee," charging only if the suit results in money
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damages against you.
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The costs of litigation for you as the defendant, on the other
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hand, will undoubtably be high -- right from the beginning. Unlike
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the plaintiff's attorney, your attorney cannot work on a
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contingency fee and will insist upon being paid whether you win or
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lose, perhaps well before the case is even over. In almost all
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cases, you will not be able to recover your attorney's fees, even
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if you prevail. So called "reasonable fees" can grow into the
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thousands of dollars in a matter of weeks, ending up costing many
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more times the price of your entire BBS equipment
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and software. Moreover, failure to win a lawsuit can have
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devastating implications for you, your business, even your
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family. This is because, in the United States at least, the law
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gives to a wrongfully injured plaintiff the right to recover all
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damages which were "caused" by your improper actions. There are few
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limits on the amount that can be recovered in most civil cases.
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9.1.2 Criminal Liability
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-------------------------
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In addition to civil liability, the BBS sysop can encounter
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problems with the local, state or federal government under the
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criminal laws. This exposure should be obvious. For example, if you
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knowingly use your BBS to store or distribute copyrighted material,
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obscene photographs, child pornography or stolen information, or if
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you encourage others to do so, you may face severe penalties --
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perhaps even time in jail.
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Your legal exposure in a criminal case is not limited to those
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situations, however, where you yourself deliberately commit
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criminal acts. If the authorities come to suspect your board
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contains evidence necessary to prove a criminal case against one of
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your callers, you may find yourself in the middle, trying to
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protect yourself from the effects of the investigation.
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Do not underestimate the trouble that can be caused by
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improper caller conduct. Four years ago federal agents and local
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authorities raided boards in twelve cities around the country as
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part of something the federal government named "Operation Sun
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Devil." Agents conducting the searches carried warrants which gave
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them the right to seize computer equipment in an attempt to locate
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"hackers" believed to be exchanging stolen credit card numbers
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through the use of computer bulletin board systems. Agents searched
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both homes and businesses and confiscated computers and peripheral
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equipment such as monitors and printers. While there has been just
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one conviction relating to computer crime so far, agents have yet
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to return all of the equipment.
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9.2 The Major Issues and Some Suggestions
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=========================================
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There is some good news: most of the risks your board faces
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can be minimized if you take an active approach to the problem.
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Your first step should be to familiarize yourself with the types of
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claims that may be brought against you or which may involve your
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board, and then proceed with this knowledge in mind.
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9.2.1 Negligence
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----------------
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Negligence actions are the most common type of civil claim
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brought in the United States. At the heart of the negligence claim
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is the legal concept of "duty." Duty is the standard by which the
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law judges a defendant's conduct when a plaintiff is harmed. It is
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your "duty" as a sysop that exposes you to liability. If you
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violate your duty to your callers or others and create an
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"unreasonable risk" which causes harm, you may be held
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liable for negligence and be required to pay money damages as
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compensation.
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Like the BBS technology itself, BBS law is quite new and the
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"duties" applicable to BBS sysops and the "unreasonable risks"
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callers may face are not well established. In general, and in the
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absence of legislation on the subject, it will be judges who will
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decide what legal duties systems operators have toward callers. In
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making this type of decision, judges will consider the costs of
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imposing a specific duty upon a sysop in comparison to the benefits
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of imposing that duty in favor of callers and others who may be
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affected by the BBS. In the absence of cases on the subject (and
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their are very few), judges will simply make the decision based
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upon what they believe is reasonable in light of the facts.
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There is simply no way of knowing what specific duties a
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plaintiff might claim you have breached and, therefore, no easy way
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of protecting yourself. This means that you must consider carefully
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the possible legal duties judges may one day place upon you as a
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BBS system operator. No doubt lawyers will someday argue that a
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sysop should have the legal duty to scan for viruses, process
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electronic mail in a way that prevents it from being destroyed or
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unreasonably delayed and to protect caller passwords. There are no
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doubt other potential duties BBS sysops will be required to meet.
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In cases where you are accused of violating a legal duty, a jury
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could be asked to decide if your failure to meet your duty caused
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the defendant harm. In a jurisdiction that allows it, the plaintiff
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may be able to claim that a virus destroyed important business
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records or that misdelivered mail caused an important meeting to be
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missed. Damages for such loses could be extremely costly.
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There is no simple or easy way to avoid negligence claims.
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However, legal "disclaimers" can help. A disclaimer is a statement
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which gives notice to your callers that you do not intend to be
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held responsible for specific harm which may occur from the use of
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your BBS. For example, you might explain to callers that electronic
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mail may be accidentally lost or destroyed and that you will not be
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liable for any harm that may come from such an accident. If a
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disclaimer is properly made, it can be quite effective in limiting
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your liability. Cases filed against defendants are often dismissed
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early on the strength of a well written disclaimer. The best
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disclaimers clearly describe a specific risk a caller may face and
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then state that it is the caller, and not you, who will bear the
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risk of any injury.
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Admittedly, the law in this area is vague. There is also no
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way of knowing for sure what specific duties the law is likely to
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place upon you. It is rarely ever a certainty that a particular
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disclaimer will be upheld in court. Indeed, even the fact that you
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do not charge callers for access may not provide you with a
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defense to a negligence claim.
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The following are suggestions that you should consider:
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1. Tell your callers what you will do and what you will not do
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in your role as sysop and be sure to follow through on your
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commitments to your callers. Give your users fair notice when you
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decide to change your policies.
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2. Keep copious records as to the board's formal policies,
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including when changes are made and any problems you may have in
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enforcing rules. If you discover a caller violating the rules,
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record the details of what has happened and put these records in a
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safe place. Law suits sometimes are filed long after an event
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happens. Three months later you might not otherwise remember the
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incident.
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3. Put BBS disclaimers in a prominent location. Consider using
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capital and/or bold letters to emphasize the risk of harm callers
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may face from using your board. Get some form of affirmative act
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from each caller that indicates they have read the disclaimers --
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this will be useful someday should you ever need to show that the
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caller was aware of its terms. While this does not have to be on
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paper, each caller should at some point have to proceed through a
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screen in which he or she acknowledges having read the
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disclaimers and agrees to them. In an ideal world, your BBS
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software would create a log of this event and store it
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permanently.
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4. Recognize that you can not disclaim certain legal duties
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and do not put too much faith in any disclaimer -- you can never be
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sure what will and will not be legally enforceable. Consider the
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disclaimer as additional protection, not your first line of
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defense.
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5. Finally, if some factual situation arises which has the
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potential to harm your callers, react promptly to take control of
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the situation. Think of your BBS as an extension of your home and
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your callers as your guests. If you believe that there is something
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or someone who may expose your callers to an "unreasonable risk" of
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harm or loss, recognize the fact that it is you who could be
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ultimately liable.
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9.2.2 Breach of Contract
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------------------------
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Another very common type of civil suit is one based upon
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contract law. In many ways a breach of contract case is similar to
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a negligence case. Indeed, often a plaintiff will allege both
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breach of contract and negligence claims in the same suit.
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Contrary to what some may think, there is no general
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requirement that contracts be signed or that they be in writing.
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One requirement of every contract, however, is "consideration." You
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generally cannot be held liable in a contract action unless you
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have somehow agreed to do something for your callers AND your
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callers have agreed, as a corresponding obligation, to do something
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for you.
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Note that a sysop who asks nothing from his callers is
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unlikely to be faced with a contract claim. In such a situation the
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callers cannot claim to have provided the sysop any "consideration"
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sufficient to create a contract. One way a sysop can reduce legal
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liability, therefore, is to run a "free" board open to anyone who
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wishes to use it.
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Many sysops recognize the liabilities that may attach if they
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enter into a contractual relationship with callers. In order to
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avoid doing so they ask for "donations" instead of payments. Be
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aware, however, that if you grant access to special areas of your
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BBS to "donating" members or provide them with special services,
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you may be creating a contract with them. In such a situation, you
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give access to the restricted area in return for the donation. The
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fact that the payment is called a "donation" does not prevent it
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from being "consideration" sufficient to support the creation of a
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contract.
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Be aware also that consideration does not have to be in the
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form of money. By way if illustration, consider the fact that many
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boards have upload/download ratios whereby a caller's download
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privileges are set proportionally to the number or amount of data
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he uploads to the board. A good argument can be made that the
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caller's uploaded data constitutes legal consideration for a
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contract with the sysop. The sysop's BBS receives the benefit of
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the uploaded data. In return, the caller has the right to receive
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the downloaded data.
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If you and your callers have a contractual relationship, it is
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important for you to recognize what your obligations toward your
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callers are. For example, if you tell callers that mail dropped off
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on your board will be uploaded to a network at least four times a
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day, do not be surprised if users come to rely upon your
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representation and begin to consider it part of the services you
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contractually agreed to provide to them. If you accept payment from
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callers for a month of BBS access, you have an obligation to see
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that the board, in fact, remains open for that month.
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As noted, one way to avoid liability is to avoid entering into
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any contractual arrangements with callers. A better approach,
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however, is to deliberately enter into a contractual relationship
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with your callers, being very specific about what obligations you
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will and will not assume and what benefits you expect your callers
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to provide to you. By stating up front what rules govern the use of
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your board and what obligations you are willing to take on, and by
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making clear to callers that these rules are a condition of using
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your board, you create the "consideration" necessary to make a
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contract.
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An example of one possible caller contract is found in the
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SYSLAW book mentioned in the introduction above. There is no magic
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formula, however, for creating a formal caller contract. Before
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investing in a BBS, call around and take a look at what other
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sysops require from their callers. At a minimum, a "caller
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contract" should include:
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(1) a statement recognizing that your BBS receives some
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tangible benefit from callers. Remember, consideration must run in
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two directions for a valid contract to exist. If your callers
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provide payment to you, this is sufficient. If you do not charge
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callers, you have to be more creative in stating what it is that
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your board receives. If you do not charge callers, caller
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"participation" in your board may be sufficient.
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(2) an indication that callers must comply with the rules of
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the BBS as a condition of using the board;
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(3) a statement that the rules may be changed as the sysop
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feels necessary;
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(4) a provision that caller questions about the agreement will
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be answered by the sysop and changes to the agreement will be made
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if necessary;
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(5) a description of the BBS and its various services and
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areas, including a statement indicating that these may be changed
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at the sysop's discretion (see below for special provisions
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regarding "adult" areas);
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(6) the costs to the caller of using the system, including any
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"upload/download" ratio requirements;
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(7) a statement regarding how electronic mail will be treated
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(see below);
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(8) an indication that the law governing any dispute will be
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the law of the place where the BBS is located (as opposed to the
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law of the place where the caller is located);
|
|
|
|
(9) notice that you reserve the right to shut the BBS down and
|
|
refund any payments made by callers, as well as a provision giving
|
|
notice to callers that you reserve the right to ban callers for
|
|
violating the board's rules as you deem necessary.
|
|
|
|
In creating a caller contract, keep in mind that plain
|
|
language that your callers can understand is far better than any
|
|
"legalese." If your callers are incapable of understanding the
|
|
language of your agreement, it is possible that the agreement would
|
|
not be enforced in your favor, should you ever need to rely upon
|
|
it.
|
|
|
|
9.2.3 Viruses
|
|
-------------
|
|
|
|
Viruses present one of the most well-known problems facing the
|
|
on-line community. These programs are often written to produce
|
|
unexpected or disastrous results for an unwary user such as
|
|
erasing the user's hard drive. Hiding viruses inside other programs
|
|
and then uploading the contaminated programs to a BBS is a favorite
|
|
way of spreading a computer virus.
|
|
|
|
Fortunately, there are programs that search for, and then
|
|
eliminate, most computer viruses. Many BBS sysops provide, as a
|
|
service to callers, basic virus scanning. This service allows
|
|
callers to exchange programs with some degree of protection.
|
|
|
|
Scanning for viruses is probably a good idea. Many callers
|
|
expect it and it is possible that the law could hold you to such a
|
|
duty. What is not a good idea, however, is misrepresenting to your
|
|
callers the extent of what can be done to protect them from such
|
|
programs. Viruses are often written with the goal of avoiding
|
|
detection. There is always a degree of risk that scanning may fail
|
|
and you should be up-front with your callers about this
|
|
possibility.
|
|
|
|
To protect yourself, consider the following suggestions:
|
|
|
|
1. Scan for viruses regularly and do not post programs for
|
|
general use until they have undergone a virus scan. Do not assume
|
|
that commercially produced programs or programs distributed on CD
|
|
ROM are virus-free.
|
|
|
|
2. Let your callers know that you cannot guarantee that
|
|
programs on your board are safe. Disclose prominently that there
|
|
are risks that the virus scanning program you use may miss
|
|
something harmful.
|
|
|
|
3. If you are unwilling or unable to scan for viruses, make
|
|
this fact clearly known and include it in your contract with
|
|
callers.
|
|
|
|
9.2.4 Public Messages and Defamation
|
|
------------------------------------
|
|
|
|
A defamation is a false statement made publicly which has the
|
|
effect of harming another's reputation. Sometimes defamation is
|
|
referred to as "libel" or "slander".
|
|
|
|
While the First Amendment of the U.S. Constitution guarantees
|
|
the right of individuals to say almost anything they desire, the
|
|
First Amendment does not always protect a speaker from being held
|
|
liable for the harm caused by his or her speech. Thus, a person
|
|
whose reputation has been wrongly injured may bring suit against
|
|
those who "publish" the statement, even if the "publisher" is not
|
|
the original speaker.
|
|
|
|
Note that a "publisher" does not have to "print" the
|
|
defamation. For example, radio and television stations have been
|
|
sued for "publishing" defamatory statements. You may be surprised
|
|
to find that defendants can be sued for defamation even when the
|
|
statements made by the defendant are reported in the form of an
|
|
accurate quotation of another's words. Put in a slightly different
|
|
way, accurate "re-publications" of a defamatory statement may
|
|
create liability for the re-publisher.
|
|
|
|
There are several defenses a publisher of a statement may have
|
|
against a plaintiff claiming defamation. For example, the U.S.
|
|
constitution protects a publisher from law suits by "public
|
|
figures" to a certain extent. Those who have deliberately become
|
|
"public figures" may sue for defamation only if able to show that
|
|
the defendant published the statement with actual knowledge that
|
|
the statement was false or with "reckless disregard" of whether it
|
|
was false. This constitutional defense protects defendants from
|
|
being sued by famous people for things said about them reasonably
|
|
believed by the speaker to be true.
|
|
|
|
Notice that a defendant who makes defamatory statements about
|
|
someone who is not a "public figure" does not get the same
|
|
constitutional protections. In other words, you can be liable for
|
|
making false statements about a private person, even if you
|
|
believed the statements were true when you made them. Obviously,
|
|
you must be careful what you "publish" on your board about anyone
|
|
whose reputation might be harmed.
|
|
|
|
There are other important defenses a "publisher" may have.
|
|
Simple name-calling is not defamatory as a general rule, even when
|
|
it is offensive. Such statements are not thought to bring actual
|
|
harm to a person's reputation.
|
|
|
|
A defendant who can show that the statement alleged to be
|
|
defamatory is truthful will also prevail in a defamation suit
|
|
because a defamation is, by definition, an untrue statement.
|
|
|
|
Another useful rule to keep in mind is that the dead cannot be
|
|
defamed, at least not in most jurisdictions.
|
|
|
|
There are many other defenses. The savvy sysop will not,
|
|
however, rely upon legal defenses to protect herself against
|
|
defamation suits. It may cost nearly as much to defend a defamation
|
|
suit as it would to settle a case with a caller or other third
|
|
person. It is far better to prevent yourself from becoming a legal
|
|
target in the first place.
|
|
|
|
In order to protect yourself from a defamation claims before
|
|
the fact, consider these suggestions:
|
|
|
|
1. Think carefully about the two types of defamation risks you
|
|
face as a sysop before you act. These are the risk that you may:
|
|
(1) directly defame a caller or some other person, either through
|
|
a deliberate or carelessly made statement and (2) re-publish a
|
|
defamatory statement initially made by one of your callers or
|
|
someone else. Passing on a false rumor can amount to actionable
|
|
defamation.
|
|
|
|
2. Actively discourage callers from "flaming" one another in
|
|
public message areas. Some callers take great pride in using sharp
|
|
wit to make others look stupid. Such comments quickly deteriorate
|
|
into personal attacks. Personal attacks can quickly deteriorate
|
|
into libel.
|
|
|
|
3. Keep in mind that your callers may not be who they say they
|
|
are and that some callers may be using aliases. This means that you
|
|
must be particularly careful. Posting a public notice that you have
|
|
banned a caller who you name because "he has been uploading
|
|
child pornography" may seem like a perfectly reasonable thing to
|
|
announce a system bulletin, until it turns out that the person you
|
|
have named has never logged onto your board and that an imposter is
|
|
the real culprit. In handling sensitive matters, discretion is
|
|
always the best advice.
|
|
|
|
9.2.5 E-mail, Privacy, and ECPA
|
|
-------------------------------
|
|
|
|
Unlike public messages, callers who send e-mail to specific
|
|
individuals do not expect their messages to be publicized or read
|
|
by anyone but the intended recipient. Many sysops are concerned,
|
|
however, that without monitoring caller e-mail they cannot be sure
|
|
that users are not violating the law and exposing their board to
|
|
legal risk such as that faced by the sysops in the Operation Sun
|
|
Devil raids.
|
|
|
|
Before you make any policy for your BBS involving electronic
|
|
mail, you should be aware of federal legislation called the Electronic
|
|
Communications Privacy Act or "ECPA." ECPA is a federal law which
|
|
governs electronic mail in all 50 states.
|
|
|
|
Under ECPA, BBS communications are protected under federal
|
|
wiretapping laws. BBS callers now have the statutory right to
|
|
expect that their electronic mail will not be intercepted or read
|
|
by others. This means that you, as a BBS sysop, have a federally
|
|
mandated obligation to keep caller communications private. Only the
|
|
sender or intended recipient may make the message public.
|
|
|
|
The good news is that ECPA mandates a higher level of
|
|
protection for you and your callers against authorities who want to
|
|
search your BBS for evidence of criminal activity. Because of ECPA
|
|
and the existence of private electronic mail on your board,
|
|
authorities are theoretically limited by ECPA in the types of
|
|
searches they may lawfully conduct against you.
|
|
|
|
ECPA does not mean that a sysop is prohibited from viewing
|
|
caller e-mail. The law creates a specific exception for sysops who
|
|
provide "electronic communication services." The exception is
|
|
narrow, however, and there is the potential for a sysop to get into
|
|
trouble if he or she does not treat caller e-mail with a certain
|
|
degree of care and professionalism.
|
|
|
|
Under ECPA, a sysop may intercept and view user e-mail,
|
|
disclose its contents to others or use information found there ONLY
|
|
to the extent necessary for the operation of the board and/or for
|
|
the protection of the sysop or with the "lawful consent" of one of
|
|
the parties sending or receiving the message. While sysops may
|
|
monitor callers to ensure that they are not transmitting
|
|
copyrighted materials or violating some other aspect of the law,
|
|
they must act like the doctor or lawyer who learns a client secret.
|
|
The information must be kept in confidence.
|
|
|
|
THIS POINT BEARS REPEATING: You may not use information you
|
|
learn from your caller's private messages to your advantage or
|
|
disclose e-mail to others outside of what is necessary to protect
|
|
yourself and your property. This requires the sysop to exercise a
|
|
fair degree of restraint.
|
|
|
|
Suggestions in this area include:
|
|
|
|
1. Monitor electronic mail, but do so only occasionally and to
|
|
the extent necessary to assure yourself that there is nothing
|
|
improper occurring on the board. Resist the urge to disclose or
|
|
otherwise comment on items you discover through reading your
|
|
callers' e-mail. Again, it is important that you act with a high
|
|
degree of professionalism and DO NOT use information learned in
|
|
reading electronic mail to your own personal or business advantage.
|
|
|
|
2. Do not put too much faith in any disclaimer you may make
|
|
about there not being any facilities for "private" e-mail. While
|
|
many sysops appear to have bought into the idea that the ECPA
|
|
privacy requirements may be avoided by stating that there "are no
|
|
facilities provided for private electronic mail," and while such a
|
|
disclaimer may provide you with some level of protection, recognize
|
|
that there are not yet any cases discussing the legal effect of
|
|
these disclaimers in the BBS context.
|
|
|
|
3. Process all e-mail in the same way and in a routine manner
|
|
and do not delay in processing mail. Your rights to monitor
|
|
electronic mail under ECPA apply only to your activities undertaken
|
|
"in the normal course" of running your board.
|
|
|
|
9.2.6 Encryption
|
|
----------------
|
|
|
|
Perhaps the "hottest" topic right now in the BBS privacy area
|
|
concerns "encryption." Encryption allows a user to scramble e-mail
|
|
messages so that only the person who knows a secret key can read
|
|
the message. Sysops who understand their legal exposure are
|
|
rightfully nervous about encryption. No doubt drug cartels,
|
|
racketeers and terrorists are using this new technology. It is now
|
|
widely believed that encryption technology has gotten to the point
|
|
where even the U.S. government is unable to "break the code" and
|
|
the uses to which encryption programs can be put will not be lost
|
|
on those who are determined to break the law.
|
|
|
|
It is reasonable to assume that callers who cannot encrypt
|
|
their messages are less likely to violate the law when using your
|
|
BBS. This means that the use of encryption on your BBS increases
|
|
your legal exposure. If encryption creates exposure, should you ban
|
|
encryption from use on your board? Some would argue that you
|
|
should. After all, why take unnecessary chances?
|
|
|
|
Others are not so quick to ban encryption. While encryption
|
|
may allow abuses to occur on your board, encryption also allows
|
|
law-abiding people the opportunity to transact business and conduct
|
|
discussions of a private nature without fear that someone may be
|
|
eavesdropping. Lawyers can exchange information with clients.
|
|
People can transmit their credit card numbers without fear of
|
|
having this information stolen. Americans have long-claimed to
|
|
cherish the right to express ideas freely and to associate with
|
|
others in privacy and without interference. While there is no
|
|
general prohibition whatsoever against a sysop denying his callers
|
|
the right to use encryption, there is something distasteful about
|
|
such a rule.
|
|
|
|
To help protect yourself against the improper use of your
|
|
board by callers who encrypt messages consider the following:
|
|
|
|
1. Pay attention to who is using encryption and consider why
|
|
this may be necessary for the specific caller. It should be a rare
|
|
caller who feels the need to encrypt all outgoing messages or who
|
|
receives only encrypted messages.
|
|
|
|
2. If you decide to allow encrypted messages, try to gauge
|
|
whether there is an unusual volume of encrypted traffic and, if
|
|
suspicious, feel free to call a user's attention to your concerns.
|
|
You are within your rights to ask the caller for the encryption key
|
|
to messages that pass through the board if you wish (although you
|
|
will certainly then have a legal duty to protect that key if you
|
|
accept it). If you are still uncomfortable after discussing the
|
|
issue with a specific caller, let him or her know that you will no
|
|
longer allow the posting of encrypted messages. If he or she
|
|
complains, refer them to another board and, if necessary, refund
|
|
any fees paid to you for the use of the BBS.
|
|
|
|
3. Set out your policies regarding encryption up-front, along
|
|
with other BBS rules. Make clear if you allow encryption that you
|
|
reserve the right to take any action you feel necessary to protect
|
|
your BBS.
|
|
|
|
|
|
4. Inform yourself about an encryption program currently being
|
|
distributed called PGP. PGP stands for "Pretty Good Privacy" and
|
|
the use of PGP on computer bulletin boards is quickly growing in
|
|
popularity. While there is probably little chance of being sued for
|
|
distributing recent copies of PGP, you should be aware that early
|
|
versions of program may violate U.S. patent laws. Moreover, PGP and
|
|
programs like it have been classified by the U.S. government as a
|
|
being "munitions" (weapons or military supplies) due to their high
|
|
level of sophistication. It is currently illegal to export this
|
|
program or even deliver it to a non-U.S. citizen inside the U.S.
|
|
You may wish to restrict the distribution of PGP to callers who are
|
|
located in the U.S. and who verify to you their U.S. citizenship
|
|
status.
|
|
-------- continued in next message ---------
|
|
|