US domain registrar Register.com has told a federal judge it can't be sued for a DNS records switch that wreaked havoc on Baidu because the ham-fisted blunder didn't amount to "gross negligence". The January 12 attack caused people who typed valid Baidu addresses into their browsers to visit a site controlled by the Iranian …
Oh goodie, me first again
When is a sewer not a sewer?
If you take away all the bad things associated with it will it suddenly smell of roses? If you stop saying nasty things about any service is the incoming all sweetness and light?
AEons ago a certain British company dealt with a strike by farming out all their transportation costs. Being British it actually made money, because when running normally they tended to lose shed loads.
Is it me or can I see a certain parallel in the though pattern?
"Under Register.com's terms of service, customers are barred from bringing civil complaints for normal negligence"
Can you DO that? Is that legally binding?
Probably. After all, if you signed the contract without reading the terms of service one could argue that YOU had been negligent.
...there are some things that you can not waive in a contract, so even if both parties agree and it's in writing, the law still takes precedence and the clause is automatically nullified should an issue surrounding it come to court. I would expect negligence to come under that category because negligence can have repercussions far outside of the bounds of the original contract (it can affect other people who otherwise have nothing at all to do with the contract), and therefore you can not (should not?) legally just say you'll ignore it if it happens.
Yes but really
".there are some things that you can not waive in a contract, so even if both parties agree and it's in writing, the law still takes precedence and the clause is automatically nullified should an issue surrounding it come to court"
True, but with a caveat, in UK law forbearance to sue is valid consideration, so in a UK court this clause would be entirely proper and enforceable, you'd be surprised how many of the contracts that you have signed without reading them contain such a clause.
AIUI this is also the case in US law.
There's been a constant stream of contract story related commentards recently shouting "They can't do that!" They can, they've got lawyers, they checked. GIYF.
2nd past the post too.
Ordinary negligence is when a company tells you you are going to be the first to post a reply.
Gross negligence is when a company tells you you stand a chance of winning a lottery that has already closed.
I'd say that's a great example of gross negligence. Employee cocks up due to poor management. It's not like it was a typo, this firm failed to follow clear procedure.
Besides, the work being carried out was core to the business conducted by the firm. Surely getting DNS right is central to running a the business of a hosting company?
If a bank failed to verify me properly and moved all my money to another account, wouldn't that be gross negligence?
Not from what I can gather
The difference is a critical one from what I can gather the difference is that with GROSS negligence something gets buggered up by someone who is aware of the consequences and they conciously make the decision to bugger something up.
Normal negligence is when someone just buggers up because they don't know what they're doing, like pressing the wrong button, the one that launches the nukes.
If a bank failed to verify me properly and moved all my money to another account, wouldn't that be gross negligence?
Based on my experience with a bank doing a similar thing with a cheque (cheque made out for "party X" - "party Y" crosses out the payee details and fills in their own in a different colour, bank accepts cheque) an employee making a mistake isn't classed as anything more than a routine mistake.
I beg to differ
Surely your argument is flawed. For example, if a surgeon sets out to remove your gall bladder but accidentally removes your liver the that is gross negligence regardless of whether or not he intended to perform the operation correctly. Surely the definition of whether or not negligence is gross revolves around the impact of said action as well as the intent of the parties involved.
Also, if I accidentally press the button that launches the nukes then that is possibly negligence on my part but gross negligence on the part of my employer in letting an idiot like me be near the lauch mechanism without any process in place to prevent an accidental launch.
Paris - well just cause she is often gross and has nice missiles
It's not flawed, it is semantics. It plays a big part in law. It's not even my argument, I just looked up the definition.
I think that might be the point of the article, specifically that Register.com could get the law suit dismissed on a legal technicality of a dubious nature.
Hence they may win the legal argument but lose the trust of their customers.
Law sucks really, it's not 0's and 1's
"If a bank failed to verify me properly and moved all my money to another account, wouldn't that be gross negligence?"
No, that translates simply as a 6 month wait to get the Financial Ombudsman to finally get off their rear ends to formally state that that was all A-OK despite clear evidence and law to the contrary, then (and only then) can you finally take them through the small claims court to lastly end up with a doorknob settlement. Been there done that, still quite happy to encounter the bonus collecting chairman one night in a dark alley and exploit uses for a drill powered hole saw that will never make it into the official instructions. But I digress.
The bizarre thing is that, if you think about it, the problem is not the lawyers per se. They are paid to interpret the book as well as they can on behalf of their clients.
The mess starts with the people who come up with these laws, and at present they are not responsible for the consequences. Make them responsible and suddenly all sorts of things might get straightened out, but that will never happen..
I just beg
"Surely the definition of whether or not negligence is gross revolves around the impact of said"
No. And don't call me surely.
You know you'd be much better informed if you actually took the time to look this kind of shit up instead of just going "OMG, this opinion I just formed in two seconds based on absolutely zero knowledge of the relevant domain must definitely be correct, it's so frickin obvious!"
So I see your "Surely" and raise you "Culpa Lata", the Roman Law principle from which the modern definition of gross negligence (in both UK and US law) depends.
See how this works ?
Not 0s and 1s...
Damn, i knew there was a reason i went into IT instead of law. :->
It's only gross
if he does it 144 times?
Coffee mug empty - check
Contents not in stomach - check
Puddle on keyboard & desk - check.
Sigh. Unplug and grab towel. Thanks.
So, failing to ensure that the customer you think you are dealing with is actually the right one is just "ordinary" negligence ?
I've got to find Bill Gates' bank teller and have him wire me a billion off of "my" account.
Let's see what kind of negligence THAT would be !
Isn't that how the second Death Star got blown up?
Well... the Rebels had a valid but obsolete pass code. They were allowed to land on the forest moon of Endor near to the shield generator. I hope I don't misremember that Darth Vader himself said to let their shuttlecraft pass. It came up at his unfair dismissal tribunal, he said the Emperor contacted him in the.Force and told him to do it, but... moral: get it in writing.
Outdated imperial codes....
That were never revoked.
The code they used was "an old one but it checked out". the failure of the data protection officer to insist old codes were cancelled means that it was unlikely that the Empire would have been fully SOX compliant, (had they existed in this galaxy, at the current time, and had a stock listing in the USA).
They should have called it the moon of Enron......(see what i did there?)
Well, no. I would guess that the pretty well useless gits out there.
Have to have negligence in their ULA.
I mean, if I were them, I would.
(And if they don't, then they might be screwed.)
register.com? Sounds like a bunch of cybersquatters pretending to be El Reg themselves.. sue the ba****ds!
From now on, my work contracts are going to define any mistakes on my part as being 'pretty darn daft negligence' or, worse case, 'WTF were you thinking negligence' so that I cannot be sued for gross negligence.
Well of course the Register can't be sued for negligence. Within 24h of trying, the prosecuting lawyer would end up having a fatal accident involving a length of cat6, two crocodile clips and a car battery courtesy of el Bastardo.
Oh, THAT Register...
And like OJ Simpson they'll be better off for having won the court case rather than losing the court case AND the public relations battle.
No Civil Action for oridinary negligence?
It's quite a common term, am I the only person who won't do businesses with companies that use their terms and conditions to allow themselves to slack off? Why would you want to pay and trust someone who seems keen to protect their 'right' to be negligent?
I doubt it
"am I the only person who won't do businesses with companies that use their terms and conditions to allow themselves to slack off? "
I doubt you are, because I doubt you have read through every clause of every contract you've ever entered into with an eye to rejecting the ones that contain such clauses.
For a start, if you had, you would have no ISP and no bank account.
Standard Form Contracts ALWAYS contain Ts&Cs which benefit the party who drafted the contract, that's what they are for. Back in the mists of many moons since, when I spent serious time boning up on this kind of thing my old law tutor honestly believed that SFCs were an evil tool of corporate oppression.
"ordinary" negligence is ok?
Although anyone can make a mistake, it still seems reasonable that the maker of that mistake should bear the consequences, or at least their insurance policy should. If the mistake leads to a financial loss (or some other sort of loss that can be described in financial terms), then they should admit to it, go for their wallet and make amends like a grown-up. Apart from being extraordinarily arrogant: to cock something up and then refuse to make reparations, it's terrible customer service - though probably no worse than we expect from large organisations, these days.
It does look like Rob Grant's book: Incompetnece [sic] is set to become the manual for the 21st century, like "1984" has become for the past 20 years.
Not an intentionaly stupid act. Everyone makes slip ups, we are just fortunat that most don't have this big an effect.
Is letting the drunk guy pilot the plane. Ordinary negligence is not making him wear his seat belt.
So we have a contract that says if one side doesn't meet the terms of the contract, it can't be sued for not meeting the terms of the contract?!
I think this may fall down on the grounds that if one side breaches a contract, the other side isn't bound to follow it.
If you enter a contract by whatever method where the terms are valid under law, then you are stuck with it until cancellation, unless you can somehow prove you have been deceived. You had the chance to evaluate what you were getting yourself into (unlike shrinkwrap licenses) so you only have yourself to blame for the consequences - you accepted them and their risk. What I don't know, however, is if you can ever sign away the negligence component. No idea, IANAL.
Classic example of signing away your rights is the use of Google services. Anyone using Google will find they have granted Google a full, free license into perpetuity to all the Intellectual Property they have stored somewhere in a Google service. Because nobody checks what they sign, all users are in this situation. If they would take your Google Apps stored plan for a brand new service which would fit in the Google model and make a profit on it themselves you will not have a leg to stand on. That doesn't mean that Google will, but they can.
Not Buying It...
I was under the impression that Gross Negligence also covered cases where you failed to carry out a procedure that you were properly trained in? (e.g. the surgeon example above). In other words, had the employee been trained (and signed off on the training), and then done something which should not have occurred had the correct procedures been followed (i.e. those outlined in the training), he would be grossly negligent.
Unless register.com do not train their employees in the skillful art of processing confirmation codes, or their internal processes do not involve "double-entry" or the codes do not include "check-digits" or the codes can be easily faked, then this seems like a pretty clear case of gross negligence.
And if any of the get-outs I just listed exist, then register.com have much bigger problems, of which their customers should be very worried.
Ha, Ha, serves Register com right.......
since they are so bloody useless. Have you ever tried to get an Auth Code from Register.com to transfer a domain name out to another Registrar ?. They make it as awkward and time consuming as possible.
Guess who BT and BERR use to reg .co.uk domains ?.
Yes you guessed it,BT acting for BERR in their "promoting British businesses getting online use Register.com to register .co.uk domain name ?. Thick or what !.
Could go either way
If their employee failed to verify the code as the result of some kind of clerical error, or even simply forgetting to do so, that would be ordinary negligence. But if he decided he just couldn't be arsed to check the code, even though he must have known it could result in the account being stolen, that as I understand it would be an example gross negligence.
The real gross negligence
is Baidu using register.com services. What next? They transfer to godaddy?
El Reg has ties to the iranian cyber army?
i thought iranians preferred ak-47's to keyboards anyway. oh nevermind...