[11861] in Commercialization & Privatization of the Internet
Re: Green Card contract analysis
daemon@ATHENA.MIT.EDU (Larry Berg)
Fri Apr 22 07:34:23 1994
Date: Thu, 21 Apr 1994 22:34:10 -0700 (PDT)
From: Larry Berg <nwsyslaw@netcom.com>
To: "DAN L. BURK" <DBURK@gmuvax.gmu.edu>
Cc: com-priv <com-priv@psi.com>
In-Reply-To: <9404212218.AA00521@psi.com>
There seems to be a great deal of emphasis being placed on the expense of
defending oneself in litigation. The expense is considerably reduced when
the defendant is a lawyer.
There is very little recognition being given to the expense of initiating
(or intervening in) litigation as a Plaintiff. The first issue to
consider is what is the proper jurisdiction to bring suit. The expense of
establishing a legal presence in a foreign jurisdiction (the next county,
let alone the next state) begins to get prohibitive. Even if every sysop
could bring suit in their own backyard under a long arm statute, do not
expect to recover your attorneys fees unless you are in direct privity
with the defendant and you have a contractual right to attorneys fees. In
some circumstances attorneys fees as damages are authorized by statute,
but no such statute exists to my knowledge for this situation (yet) :).
I will spare you the traditional negligence cause of action analysis,
however, do not expect uniform outcomes from litigation arising out of
this new and rapidly developing "industry".
Unless the stakes are high, there are no winners in the litigation arena.
A more appropriate form of alternative dispute resolution would be
standard consent to binding arbitration clauses in every new user
agreement, similar to stock brokerage agreements (except we need to
"invent" an arbitration scheme to thereafter resolve the disputes that
come up). The courts frown on liquidated damages clauses which are
intended to be punitive in nature, and actual damages in this area may
be difficult to prove up.
While the peer pressure system has served to instill a sense of order
over the way that we communicate on the Inet, most of us have better
things to do than become personally involved in other people's
dysfunction. Rather than exchanging ideas on how to get even with
irresponsible participants, an organized system of due process and dispute
resolution needs to be developed. If this cannot be done on the basis of
industry consensus, it will be legislated into existence sooner rather
than later.
Larry Berg
nwsyslaw@netcom.com
Seattle, WA
