Re:Microsoft Uses Trademark Law to Disrupt Trickbot Botnet
by rlpb on Monday October 12, 2020 @12:01PM
(#24755804)
Mens rea generally only applies to criminal law. Lack of mens rea doesn't insulate you from civil liability, even if it might affect it.
See the first paragraph at https://en.wikipedia.org/wiki/Mens_rea
Re:Microsoft Uses Trademark Law to Disrupt Trickbot Botnet
by thaumasiotes on Monday October 12, 2020 @10:34AM
(#24754712)
That distinction would only be relevant if the statute specifically drew it. The ordinary mens rea distinction is between (1) triggering the bug, intending to trigger the bug; and (2) triggering the bug, not intending to trigger the bug.
Re:Microsoft Uses Trademark Law to Disrupt Trickbot Botnet
by adinisom on Monday October 12, 2020 @10:47AM
(#24754847)
Trademark infringement seems to be a strict liability tort:
https://www.tilleke.com/resources/application-strict-liabili...
I think you're hitting the dead end you get to when you only conceive of the law as considering physical actions, but that's not how it actually works. IANAL, but there's a legal concept called mens rea that's very applicable here. Basically, what's going on in someone's mind is legally relevant, so cases where someone performed an identical physical action for different reasons can be treated differently. So there'd be a difference between:
1. Triggering a bug maliciously for personal gain.
2. Triggering a bug accidentally.
3. Triggering a bug benevolently as part of an effort to fix it.