Re: [Full-disclosure] Email Disclaimers...Legally Liable if breached?
Thanks for the clarification. Actual damages and profit would be very difficult to quantify in most cases. If I remember correctly, profit is what the infringer made off the infringed work; it is not loss of profit on the creators part. Do you agree? Date: Thu, 11 Oct 2007 22:23:17 -0700 From: [EMAIL PROTECTED] To: [EMAIL PROTECTED] Subject: Re: [Full-disclosure] Email Disclaimers...Legally Liable if breached? CC: full-disclosure@lists.grok.org.uk On 10/11/07, Ray P [EMAIL PROTECTED] wrote: There is a good reason. There are two types of copyrights in the US: implicit and registered. For a long time now, a work receives an implicit copyright at the instant it is created. If someone violates an implicit copyright, the owner's only legal recourse is to go to court and get an order to stop the infringing use. Zero dollar damages. I know a little about copyright law. While it is true you can get statutory damages if the work is registered before any infringement occurs, you can still get actual damages and profit if you didn't register before the infringement. The copyright fee used to be $20 per. I believe it's $45 now. Imagine if you couldn't send an email until the contents had been filed, fee paid and a registration document received. Not only would email get really expensive, it wouldn't be very timely. :-) If you file within three months after creation, you can still get statutory damages, even if the infringement occurs before you filed. That gives you the ability to publish immediately, then file later if you need to. Though it would be expensive to pre-register all your emails. g If an email is forwarded and it causes actual damages, you may be able to recover those damages in court, even without a copyright notice. However, a notice would make it more likely that you'll win. _ Climb to the top of the charts! Play Star Shuffle: the word scramble challenge with star power. http://club.live.com/star_shuffle.aspx?icid=starshuffle_wlmailtextlink_oct___ Full-Disclosure - We believe in it. Charter: http://lists.grok.org.uk/full-disclosure-charter.html Hosted and sponsored by Secunia - http://secunia.com/
Re: [Full-disclosure] Email Disclaimers...Legally Liable if breached?
On Wed, 10 Oct 2007 22:44:08 PDT, Troy said: I'm surprised we don't see more disclaimers with a copyright statement in them. I would think that using copyright law as an argument against unauthorized distribution of an email would stand a better chance in court than a non-binding disclaimer at the bottom of the message. The problem is that it's *really* hard to write the disclaimer with a copyright attached to it. The tricky part is to figure out how to make it *legal* to cite the text in a reply - how would you phrase your copyright statement to allow what I'm doing in this message? Also, copyright doesn't cover *ideas* well - so if the leaked e-mail has info about (for instance) a planned hostile corporate takeover, the *information* has escaped, and copyright only prohibits *that expression* from being copied. If I rephrase and restate the info, there's no copyright issue with my then telling all and sundry about the corporation that's about to have a hostile takeover... pgpztIUAoejdL.pgp Description: PGP signature ___ Full-Disclosure - We believe in it. Charter: http://lists.grok.org.uk/full-disclosure-charter.html Hosted and sponsored by Secunia - http://secunia.com/
Re: [Full-disclosure] Email Disclaimers...Legally Liable if breached?
I'd guess that the only disclaimer that carries any weight, and it'll probably be minimal, is the kind that says something along the lines of The person who wrote this email is not an officer of the organization, and statements contained herein that contradict organization policy are not enforceable, nor are they representative of the organization. Anything else, such as directives to destroy before reading, etc., is purely hogwash. The problem then becomes identifying those who *are* officers of the organization, and putting an appropriate claim on their emails, stating their responsibilities, or at least making sure that their emails don't have the disclaimer on them. On 10/10/07, Kelly Robinson [EMAIL PROTECTED] wrote: It is common these days for email messages to contain a disclosure notice, which may include statements such as: You must read the notice The views expressed in the accompanying email are not necessarily those of the company The email and any attachments should be checked for viruses. Do these notices carry any legal force? Why or Why not? ___ Full-Disclosure - We believe in it. Charter: http://lists.grok.org.uk/full-disclosure-charter.html Hosted and sponsored by Secunia - http://secunia.com/ ___ Full-Disclosure - We believe in it. Charter: http://lists.grok.org.uk/full-disclosure-charter.html Hosted and sponsored by Secunia - http://secunia.com/
Re: [Full-disclosure] Email Disclaimers...Legally Liable if breached?
-BEGIN PGP SIGNED MESSAGE- Hash: SHA1 VLADIS YOU ARE NOT LAWYER! YOU DO NOT EVEN KNOW HOW TO USE COMPUTER! SHUT UP VLADIS! On Thu, 11 Oct 2007 13:56:36 -0400 [EMAIL PROTECTED] wrote: On Wed, 10 Oct 2007 22:44:08 PDT, Troy said: I'm surprised we don't see more disclaimers with a copyright statement in them. I would think that using copyright law as an argument against unauthorized distribution of an email would stand a better chance in court than a non-binding disclaimer at the bottom of the message. The problem is that it's *really* hard to write the disclaimer with a copyright attached to it. The tricky part is to figure out how to make it *legal* to cite the text in a reply - how would you phrase your copyright statement to allow what I'm doing in this message? Also, copyright doesn't cover *ideas* well - so if the leaked e- mail has info about (for instance) a planned hostile corporate takeover, the *information* has escaped, and copyright only prohibits *that expression* from being copied. If I rephrase and restate the info, there's no copyright issue with my then telling all and sundry about the corporation that's about to have a hostile takeover... -BEGIN PGP SIGNATURE- Note: This signature can be verified at https://www.hushtools.com/verify Charset: UTF8 Version: Hush 2.5 wpwEAQECAAYFAkcOjs0ACgkQ+dWaEhErNvTnyAP+LVuOuLLcwGgWAqUlRcTWNoHqqARv iCP7lKBIrdOIOjvxMU36VmONsPm5DWeUtWfVolnv9SNIvUcc00E7GCZr3HUVnnLIqAt6 qpEzW8PJFHh1985VDN41wbjzJgSmyATWM7LWLtY7xTmSlDJLWQAqXpCUDmsvM1C0nCEq Wd9HcVc= =QWSq -END PGP SIGNATURE- ___ Full-Disclosure - We believe in it. Charter: http://lists.grok.org.uk/full-disclosure-charter.html Hosted and sponsored by Secunia - http://secunia.com/
Re: [Full-disclosure] Email Disclaimers...Legally Liable if breached?
There is a good reason. There are two types of copyrights in the US: implicit and registered. For a long time now, a work receives an implicit copyright at the instant it is created. If someone violates an implicit copyright, the owner's only legal recourse is to go to court and get an order to stop the infringing use. Zero dollar damages. If the work is registered by filing a copy with government on the appropriate form (TX?) and a fee, then the legal recourse includes the ability to get money in damages. The copyright fee used to be $20 per. Imagine if you couldn't send an email until the contents had been filed, fee paid and a registration document received. Not only would email get really expensive, it wouldn't be very timely. :-) Ray Date: Wed, 10 Oct 2007 22:44:08 -0700 From: [EMAIL PROTECTED] To: full-disclosure@lists.grok.org.uk Subject: Re: [Full-disclosure] Email Disclaimers...Legally Liable if breached? On 10/10/07, Ray P [EMAIL PROTECTED] wrote: Would the _intended_ recipient have a case against the sender for contractual failure to protect confidential information (or whatever) if the _un_intended recipient posts it somewhere or otherwise discloses its contents? I'm surprised we don't see more disclaimers with a copyright statement in them. I would think that using copyright law as an argument against unauthorized distribution of an email would stand a better chance in court than a non-binding disclaimer at the bottom of the message. _ Windows Live Hotmail and Microsoft Office Outlook – together at last. Get it now. http://office.microsoft.com/en-us/outlook/HA102225181033.aspx?pid=CL100626971033___ Full-Disclosure - We believe in it. Charter: http://lists.grok.org.uk/full-disclosure-charter.html Hosted and sponsored by Secunia - http://secunia.com/
Re: [Full-disclosure] Email Disclaimers...Legally Liable if breached?
On 10/11/07, [EMAIL PROTECTED] [EMAIL PROTECTED] wrote: The problem is that it's *really* hard to write the disclaimer with a copyright attached to it. The tricky part is to figure out how to make it *legal* to cite the text in a reply - how would you phrase your copyright statement to allow what I'm doing in this message? I wouldn't necessarily have to. Fair use would cover the use of the text in a reply. After all, you're quoting part of my message. Besides, this is a public forum, so one would expect you to be able to quote anything I write here. On the other hand, if I were to send you a private message with a disclaimer that included a copyright statement and prohibited you from distributing the email to third parties, you would be able to include the text in a reply to me, but would not be able to forward the message to somebody else. Also, copyright doesn't cover *ideas* well - so if the leaked e-mail has info about (for instance) a planned hostile corporate takeover, the *information* has escaped, and copyright only prohibits *that expression* from being copied. If I rephrase and restate the info, there's no copyright issue with my then telling all and sundry about the corporation that's about to have a hostile takeover... That's why the copyright would be in addition to the standard disclaimers we're seeing. It certainly wouldn't hurt to include it, and it would carry more weight in court if somebody sent the message verbatim to somebody else. Keep in mind, I'm not saying people should be doing this. Disclaimers on emails are pretty silly and are downright stupid when they're sent to a email list or a newsgroup. I was just surprised that the people who do use these disclaimers aren't also including a copyright notice. ___ Full-Disclosure - We believe in it. Charter: http://lists.grok.org.uk/full-disclosure-charter.html Hosted and sponsored by Secunia - http://secunia.com/
Re: [Full-disclosure] Email Disclaimers...Legally Liable if breached?
On 10/11/07, Ray P [EMAIL PROTECTED] wrote: There is a good reason. There are two types of copyrights in the US: implicit and registered. For a long time now, a work receives an implicit copyright at the instant it is created. If someone violates an implicit copyright, the owner's only legal recourse is to go to court and get an order to stop the infringing use. Zero dollar damages. I know a little about copyright law. While it is true you can get statutory damages if the work is registered before any infringement occurs, you can still get actual damages and profit if you didn't register before the infringement. The copyright fee used to be $20 per. I believe it's $45 now. Imagine if you couldn't send an email until the contents had been filed, fee paid and a registration document received. Not only would email get really expensive, it wouldn't be very timely. :-) If you file within three months after creation, you can still get statutory damages, even if the infringement occurs before you filed. That gives you the ability to publish immediately, then file later if you need to. Though it would be expensive to pre-register all your emails. g If an email is forwarded and it causes actual damages, you may be able to recover those damages in court, even without a copyright notice. However, a notice would make it more likely that you'll win. ___ Full-Disclosure - We believe in it. Charter: http://lists.grok.org.uk/full-disclosure-charter.html Hosted and sponsored by Secunia - http://secunia.com/
[Full-disclosure] Email Disclaimers...Legally Liable if breached?
It is common these days for email messages to contain a disclosure notice, which may include statements such as: - You must read the notice - The views expressed in the accompanying email are not necessarily those of the company - The email and any attachments should be checked for viruses. Do these notices carry any *legal* force? Why or Why not? ___ Full-Disclosure - We believe in it. Charter: http://lists.grok.org.uk/full-disclosure-charter.html Hosted and sponsored by Secunia - http://secunia.com/
Re: [Full-disclosure] Email Disclaimers...Legally Liable if breached?
They don't carry any legal weight at all because they're after the content of the message and forcibly trying to order a 3rd party into some sort of legally binding agreement after the fact (reading the contents of the message) would never hold up in a court. An EULA would have a far better chance of holding up that the waste of badwidth that these words pose. They're just someones feel good precaution. Geoff Sent from my BlackBerry wireless handheld. -Original Message- From: Kelly Robinson [EMAIL PROTECTED] Date: Thu, 11 Oct 2007 08:52:38 To:full-disclosure@lists.grok.org.uk Subject: [Full-disclosure] Email Disclaimers...Legally Liable if breached? It is common these days for email messages to contain a disclosure notice, which may include statements such as: * You must read the notice * The views expressed in the accompanying email are not necessarily those of the company * The email and any attachments should be checked for viruses. Do these notices carry any legal force? Why or Why not? ___ Full-Disclosure - We believe in it. Charter: http://lists.grok.org.uk/full-disclosure-charter.html Hosted and sponsored by Secunia - http://secunia.com/ ___ Full-Disclosure - We believe in it. Charter: http://lists.grok.org.uk/full-disclosure-charter.html Hosted and sponsored by Secunia - http://secunia.com/
Re: [Full-disclosure] Email Disclaimers...Legally Liable if breached?
Kelly Robinson wrote: It is common these days for email messages to contain a disclosure notice, which may include statements such as: - You must read the notice - The views expressed in the accompanying email are not necessarily those of the company - The email and any attachments should be checked for viruses. Do these notices carry any *legal* force? Why or Why not? Do we look like Lawyers'R'Us ??? In which country's, or countries', legal system(s) are you going to apply the advice you get? In general though, the feeling here (from past discussions of such things) is that they seem unlikely to be at all enforceable if they try to enforce an action or liability _on the receiver_ (the typical if you are not the intended recipient of this message, immediately inform us, delete all copies, etc, etc type thing) _and_ there is not already some kind of relationship between sender and receiver that may make such terms in some sense reasonable. However, if they are simple disclaimers of the _sender's_ responsibility they may well be meaningful (your typical nothing in this message should be construed as legal [or financial] advice... thing from law [financial/banking] firms, possibly your second example above though note the following point, etc). There are further issues surrounding wordings such as may, could possibly, etc conjoined with absolute conditions, that suggest most companies that include these kinds of disclaimers, terms enforcers, etc never bothered to run the idea and/or wording past their lawyers, or they did but ignored the advice they got, or they have grossly incompetent lawyers... Oh, and need I say IANAL ??? Regards, Nick FitzGerald ___ Full-Disclosure - We believe in it. Charter: http://lists.grok.org.uk/full-disclosure-charter.html Hosted and sponsored by Secunia - http://secunia.com/
Re: [Full-disclosure] Email Disclaimers...Legally Liable if breached?
At 2007-10-11 08:52 +1000, Kelly Robinson [EMAIL PROTECTED] wrote: It is common these days for email messages to contain a disclosure notice, which may include statements such as: You forgot the most absurd: the content of this message [sent often, on purpose, to publicly visible and archived mailing lists] is intended 'only for the adressee'. Do these notices carry any *legal* force? Why or Why not? I am not a lawyer, but my understanding is the same as Geoff's ([EMAIL PROTECTED]): because the warning, such as it is, appears after the recipient has already read the content with no way (and not even tacking it on the top would really be enough, I don't think) for the recipient to opt-out and simply not read that content. They should be contrasted with warnings of potential legal culpability if a connecting user continues to use a system in /etc/issue or similar: those are a Good Idea, and help one's case against attackers, because they go a long way to nullify I didn't know it wasn't okay sorts of defenses. -- gabriel rosenkoetter [EMAIL PROTECTED] pgpdoeRbATsWk.pgp Description: PGP signature ___ Full-Disclosure - We believe in it. Charter: http://lists.grok.org.uk/full-disclosure-charter.html Hosted and sponsored by Secunia - http://secunia.com/
Re: [Full-disclosure] Email Disclaimers...Legally Liable if breached?
[EMAIL PROTECTED] to Kelly Robinson: They don't carry any legal weight at all because they're after the content of the message and forcibly trying to order a 3rd party into some sort of legally binding agreement after the fact (reading the contents of the message) would never hold up in a court. An EULA would have a far better chance of holding up that the waste of badwidth that these words pose. They're just someones feel good precaution. In general I agree, but the reason I didn't mention that in my own recent response to Kelly's question is that, this morning, among the usual bounces/OOO/etc junk I got from last night's mailing list posts was the following... This email is to be read subject to the disclaimer below. I will be out of the office starting 05/10/2007 and will not return until 06/11/2007. I will respond to your message when I return from annual leave. NOTICE - This communication contains information which is confidential and the copyright of Ernst Young or a third party. If you are not the intended recipient of this communication please delete and destroy all copies and telephone Ernst Young on 1800 655 717 immediately. If you are the intended recipient of this communication you should not copy, disclose or distribute this communication without the authority of Ernst Young. Any views expressed in this Communication are those of the individual sender, except where the sender specifically states them to be the views of Ernst Young. Except as required at law, Ernst Young does not represent, warrant and/or guarantee that the integrity of this communication has been maintained nor that the communication is free of errors, virus, interception or interference. Liability limited by a scheme approved under Professional Standards Legislation. If this communication is a commercial electronic message (as defined in the Spam Act 2003) and you do not wish to receive communications such as this, please forward this communication to [EMAIL PROTECTED] Most of the stuff after NOTICE is the kind of stuff I've previously suggested seems likely to be deemed legalistic nonsense if ever tested in court, but the interesting and new (to me) twist here is that they clearly state _up front_ that they consider that there are, possibly special, conditions on your reading/acting on the message. IA(still)NAL but I think that in general this twist does not greatly help. If they only put such disclaimers on especially sensitive messages to help protect themselves in the case of truly accidental disclosure (an employee accidentally mis-addressing the Email maybe???) they could claim to be practising a duty-of-care, but slapping such a notice on an auto-generated out-of-office message (and one that should not have been sent in response to a bulk mailing-list message anyway!) shows the limits of that duty-of-care, even suggesting that they are really applying a blanket cover your arse procedure rather than practising a real duty-of-care... Regards, Nick FitzGerald ___ Full-Disclosure - We believe in it. Charter: http://lists.grok.org.uk/full-disclosure-charter.html Hosted and sponsored by Secunia - http://secunia.com/
Re: [Full-disclosure] Email Disclaimers...Legally Liable if breached?
US-centric response: If there is no law, there can be no liability unless a contract exists. For a contract to exist, consideration (usually money) has been exchanged. If you simply receive an email by mistake, no consideration has been exchanged. Consider this angle: If a company adds such a disclaimer, is it a tacit acknowledgment that they have a duty to protect the contents of the email? If so, is it negligence if they fail to do so by sending it to the wrong person? Would the _intended_ recipient have a case against the sender for contractual failure to protect confidential information (or whatever) if the _un_intended recipient posts it somewhere or otherwise discloses its contents? If a company sends me something in the mail that I did not order, it's mine and I do not have to pay for it. If a company sends me an unsolicited email, does it become mine? Remember, it wasn't like a package delivered to the wrong address. The email was delivered to my address with my name on it. Ray Date: Wed, 10 Oct 2007 19:50:51 -0400 From: [EMAIL PROTECTED] To: full-disclosure@lists.grok.org.uk Subject: Re: [Full-disclosure] Email Disclaimers...Legally Liable if breached? At 2007-10-11 08:52 +1000, Kelly Robinson [EMAIL PROTECTED] wrote: It is common these days for email messages to contain a disclosure notice, which may include statements such as: You forgot the most absurd: the content of this message [sent often, on purpose, to publicly visible and archived mailing lists] is intended 'only for the adressee'. Do these notices carry any *legal* force? Why or Why not? I am not a lawyer, but my understanding is the same as Geoff's ([EMAIL PROTECTED]): because the warning, such as it is, appears after the recipient has already read the content with no way (and not even tacking it on the top would really be enough, I don't think) for the recipient to opt-out and simply not read that content. They should be contrasted with warnings of potential legal culpability if a connecting user continues to use a system in /etc/issue or similar: those are a Good Idea, and help one's case against attackers, because they go a long way to nullify I didn't know it wasn't okay sorts of defenses. -- gabriel rosenkoetter [EMAIL PROTECTED] _ Boo! Scare away worms, viruses and so much more! Try Windows Live OneCare! http://onecare.live.com/standard/en-us/purchase/trial.aspx?s_cid=wl_hotmailnews___ Full-Disclosure - We believe in it. Charter: http://lists.grok.org.uk/full-disclosure-charter.html Hosted and sponsored by Secunia - http://secunia.com/
Re: [Full-disclosure] Email Disclaimers...Legally Liable if breached?
On 10/10/07, Ray P [EMAIL PROTECTED] wrote: Would the _intended_ recipient have a case against the sender for contractual failure to protect confidential information (or whatever) if the _un_intended recipient posts it somewhere or otherwise discloses its contents? I'm surprised we don't see more disclaimers with a copyright statement in them. I would think that using copyright law as an argument against unauthorized distribution of an email would stand a better chance in court than a non-binding disclaimer at the bottom of the message. ___ Full-Disclosure - We believe in it. Charter: http://lists.grok.org.uk/full-disclosure-charter.html Hosted and sponsored by Secunia - http://secunia.com/
