code red and MS's liability...

[Eric]

What was said prior was theoretically correct: Although any user who enters
a Microsoft licensing agreement (i.e., a contract) is bound by the terms of
that contract, assuming none of the traditional or exotic defenses apply
(e.g., duress, unconscionablity, age of minority, vaguenss), it is still the
case that one may sue in tort.  A tort is a wrong that does not rise to the
level of criminality, i.e, it is a civil wrong.  As was said, tort is an
area of (mostly state) law that was used against the tobacco companies.  It
also covers negligence (e.g., Exon Valdeze (sp?), car accidents), wrongful
death (OJ Simpson) defamation (Flynt v. Penthouse I think), and some
copyright violations (Napster), etc.

In other words, even if they are not liable in contract for certain harms to
me because I "signed" a contract with them, they are nonetheless liable for
any tortious actions they inflict.  It would be interesting to see some
crafty (i.e., greedy) lawyer pursue this further.  I think we can all rest
assured that one will.

I suspect that the tort theories of negligence and strict liability would be
the main causes of action.  Big issues in the case would be these:

Whether Microsoft knew or reasonably could have known of the flaw in IIS;

Whether Microsoft could reasonably forsee the danger to come from the flaw
in IIS;

Whether the failure of consumers to install the IIS patch constitutes an
intervening cause such that MS cannot be liable (i.e., if users would have
patched IIS, this would not have happened);

The strict liablity issue would probably fail.  That cause of action is
reserved for bandaids in pickle jars and mice in beer bottles.

The unconscionablity claim against MS should be the strongest.  Basically
the unconscionablity argument says MS has so much power that they dictate
terms of license agreements to consumers who have no bargaining power—-i.e.,
no leverage--to resist them.  Unfortunately, with the abundance of
Republican /Libertarian judges in both the federal and state (esp. Arizona)
systems, this claim would likeley fail.  You see, people like Bush and his
judicial clones like to protect businesses, not little guys.

I could go on about this, including some ways I have come up with the escape
some of the terms in MS' licensing agreement, but I will stop now as I have
gone on long enough.

Peace out

e

> -----Original Message-----
> From: plug-discuss-admin@lists.PLUG.phoenix.az.us
> [mailto:plug-discuss-admin@lists.PLUG.phoenix.az.us]On Behalf Of John
> (EBo) David
> Sent: Saturday, August 11, 2001 3:10 AM
> To: plug-discuss@lists.PLUG.phoenix.az.us
> Subject: Re: code red and MS's liability...
>
>
> Nathan England wrote:
> >
> > Hmmm.  Excellent point!  I wonder if as a linux user and not having any
> > windows here, I could get Microsoft to pay my Speakeasy bill this month
> > since the internet is slow, and below par as for what Speakeasy
> > conciders 'good enough' to keep up with their TOS...
> > I don't want to pay the bill, it's not my problem their systems aren't
> > secure, why should I foot the bill?  Or any of us for that matter!
> >
> > ha ha..  maybe some lawyer will see this and jump on it.  Come to think
> > of it, maybe Microsoft could pay my gas bill for driving to work as
> > well! If it wasn't for their shoddy software, I wouldn't have to go
> > there everyday! I could work from home!  I never signed anything
> > agreeing to fix all of ms' problems while at work.
> >
> > Any other crazy ideas?? lol.  I bet /. could get some *really* good
> > ideas off this one! ha ha
>
> don't know how crazy it is...  Philips Moris (sp?) got sued for how many
> billions for their dirty dealings?  MS could well be sued for ignoring
> all the security problems and making a policy for more glitz and don't
> wory about the details.
>
> There is not only the cost of the slowed connections, but the time of
> the sysadmins cleaning out the files, the disk space rental (200MB's I
> heard Techno Mage say in just 4 days) and whatever it costs in backups
> (how many people out there do dailies?)...
>
> I hate to encourage lawyers, but there must be an ambulance chaser out
> there somewhere ;-)
>
> > On 11 Aug 2001 01:17:43 -0700, John (EBo) David wrote:
> > >
> > > someone point out that MS cannot be held liable for their security
> > > laxity because of their licensing clause...
> > >
> > > I wonder if CISCO, Linux, Solaris, etc. could bring forth a
> class action
> > > suit for costs and damages since none of them ever had to sign MS's
> > > licensing agreement.  Wouldn't that put some starch in their britches
> > > ;-)
>
>   EBo --
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