Eric Rostetter wrote:
>>You did not tell ME, therefore you did not have permission FROM ME
>>to makes changes to the way MY server operates.
>
>By using the software, you took responsibility for how it works. From
>the license:
>
> 11. BECAUSE THE PROGRAM IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY
>FOR THE PROGRAM, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN
>OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES
>PROVIDE THE PROGRAM "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED
>OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
>MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS
>TO THE QUALITY AND PERFORMANCE OF THE PROGRAM IS WITH YOU. SHOULD THE
>PROGRAM PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING,
>REPAIR OR CORRECTION.
>
> 12. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING
>WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MAY MODIFY AND/OR
>REDISTRIBUTE THE PROGRAM AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES,
>INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING
>OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED
>TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY
>YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER
>PROGRAMS), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE
>POSSIBILITY OF SUCH DAMAGES.
>
>So until you prove they did something illegal, it is your problem to deal
>with, per the license.
Here we go again, you are introducing something irrelevant to try and
justify your actions. Yes, I know what the licence says - but that
merely says I cannot expect support from you, and I can't complain if
it doesn't work. That still does not mean I am giving you permission
to enter my property and make changes - it just means that you are
under no obligation to provide support or updates.
That's the whole point - I'm NOT complaining that your aren't
providing support, and I'm not claiming damages. I'm complaining
because you have gone well beyond "not providing support" by actively
disabling a program that you deemed I shouldn't be running according
to your view of how the computing world should run. Nothing in that
licence or any implied agreement for you to update my server allows
for that - and under UK law what you did was illegal (and under US
law if what I understand of the Gary McKinnon case is right).
>>Giving notice that you are going to trespass does not make that
>>trespass legal, even if you had come directly to me door and told
>>me in person - which of course no-one did even in computer terms of
>>making any sort of related message appear on my system.
>
>If you are on my property (say you rent or lease it from me), I can come
>in anytime. If you use my software, I can change it any time I want
>per my license agreement.
But I'm not on your property, you are on mine when you make changes
to my server. The nearest analogy I can come up with is that you've
offered to water my plants while I'm away - analogous to providing AV
updates. You've offered to do that out of the goodness of your heart
as a friendly neighbour - and I thank you for that, as I thank the
team (again) for having provided the software and updates in the past.
That in effect is an implicit permission for you to enter my property
- but only for that purpose.
Now by analogy, the warnings given by freshclam could be like you
pointing out that my roses are getting past their best - I really
ought to consider getting some new ones. But for the time being, I'm
reasonably happy with them and will put up with them until I've time
to redo the garden properly.
You really don't like those roses, so you are perfectly entitled to
tell me you're not watering them any more. I could live with that -
as you say, you don't owe me anything, and it's not for me to demand
anyone does anything I'm not paying them for, and note that I have
not tried to demand anyone do anything other than 'leave my server
alone'.
The equivalent of what the ClamAV team has done is for you to decide
that I really should not have those old roses, you you have dropped
some powerful weed killer in the watering can to see them off. That
would be outside of your implied permission to access my property,
and also criminal damage.
Also, if I *was* on your property (eg something I'd rented), then
under English law I would have the right of "quiet enjoyment" - that
means you do **NOT** have the right to come in anytime UNLESS that is
explicitly provided for in the lease or tenancy agreement. leases
usually provide for access in order to perform maintenance - but only
on reasonable notice and at reasonable times, unless to deal with an
emergency. I see nothing in that licence you quote saying it gives
you the right to interfere with my server if I run your software.
You still wouldn't have the right to poison the roses unless they
were directly causing a threat to the property - and you cannot say
that me running out of date (ie not updated) AV sigs was directly
threatening the ClamAv project.
>>You also cannot claim that my downloading of updates constitutes an
>>invite - it constitutes an invite to put AV sig updates on there
>>for the purpose of detecting new threats. A poison pill update
>>doesn't fit that description.
>
>It is a free service they provide, not to you, but to anyone. So they
>owe you nothing. You didn't sign any contact with them that they would
>provide only valid signatures, or any at all. You assume the risk in
>using the feed.
As a point of law, a contract does not need a signature, nor does it
even need anything in writing - all it needs is an offer and
acceptance. In the absence of a definitive statement, the legal
situation would be whatever the court could determine were the facts
of the case. In that respect, "man freshclam" says : "freshclam is a
virus database update tool for ClamAV". In any dispute therefore,
unless there was something of equal prominence to contradict it, then
it would be inferred that the purpose of the tool was to deliver AV
signature updates - not a poison pill designed to stop the software
working.
This goes beyond any clause designed to avoid liability for errors in
the program. Yes, the clauses above would absolve you of liability
for any reasonable errors, but it still would not absolve you of
liability for deliberate malice.
I assume you will have similar laws over their, but over here, there
are some rights you CANNOT sign away. The extent varies according to
the situation (eg consumers have more rights than business). As a
consumer, even if I sign a contract that a supplier is not liable for
anything (such as the clauses quoted above), that agreement is
totally worthless as the law says I cannot sign away those rights -
and in court the clauses would be declared unlawful and
unenforceable. Similarly, even if I said I didn't mind if you shot
me, if you took me at my word, you would still find yourself in court
- my permission might well be accepted as mitigating when it comes to
the charge laid or the sentence, but it would not absolve you of a
crime committed.
>I'm just saying that the arguments are lame (calling it blackmail when
>it isn't, saying they need permission from each and every user when they
>don't, etc). Come on folks, make your arguments at least reasonable!
I didn't make those suggestions BTW.
Christopher X. Candreva wrote:
>Let me drive this home. In the state of New York, until recently if the
>government wanted to use eminant domain to take your property, all they had
>to do was take out an ad in the paper. They do not need to track down the
>owner of the building or land, just take out an ad. If you don't read the
>paper that day, the first you hear that your building was being knocked down
>may be when the wrecking ball shows up.
>
>This was only amended in 2004 after some particularly nasty battles.
>
>http://ownerscounsel.blogspot.com/2009/06/port-chester-offers-apology-for-taking.html
Now that's a very interesting argument to throw in ! Are you now
claiming that the ClamAV team are now part of government and are
entitled to my server by Eminent Domain ? If you are, then poppycock,
if not, then why bring it up. You even point out that the law has
been changed on that. Over here we have Compulsory Purchase to cover
situation where a government body needs to acquire property for a
project - but they cannot just take it like that.
Yes, over here there are notifications for which public notice is
sufficient action. If someone wants to build in the fields behind my
house, then they only have to post notices about the planning
application on the site - but they must post the notice AT THE SITE,
not at the developers home. They still cannot come and build on my
land without my permission - even if they've got planning permission
and misled the planning board into believing that they have the
landowners permission or own the land.
Note that building in the field will not stop me living in my house.
It may affect my amenity value, but it won't stop me living there -
in the same way that not providing AV updates will affect the amenity
value of my server, but it won't stop me running it. On the other
hand, knocking down my house would most certainly affect my ability
to live there - and you cannot do that in this country without
serving notice to the property and the registered owner (unless the
latter cannot be found after reasonable efforts I believe).
As a complete aside, there have been cases (one was local-ish) where
there's been a "mix up" (for want of a better polite expression) and
a contractor has knocked the wrong house down. It usually results in
serious compensation - and some rather negative PR for those
responsible.
--
Simon Hobson
Visit
http://www.magpiesnestpublishing.co.uk/ for books by acclaimed
author Gladys Hobson. Novels - poetry - short stories - ideal as
Christmas stocking fillers. Some available as e-books.
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