TUCoPS :: Cyber Law :: r_estory.txt

The REAL Rusty & Edie Bust Story



Rusty & Edie's BBS touted the fact that they had only two rules: 1. Have fun
and 2. No More Rules. It would appear they are going to soon add a third rule
to their operation - No Commercial Software.

After several years operating as the biggest open secret in BBSland, the 124
line BBS operated from the home of Russell And Edwina Hardenburgh in Boardman
Ohio was raided by the FBI. On Saturday afternoon, January 30, FBI agents
presented Rusty with a search warrant. Approximately 130 personal computers,
modems, LAN cabling, software packages, and subscriber records were seized as
evidence and hauled away - essentially terminating all operations.

Claiming some 14,000 subscribers to a system sporting a registration fee of
some $89 per year and 124 access telephone lines, Rusty & Edie's was one of
the nation's largest bulletin board systems. They claimed some 3.4 million
calls since going online and were receiving some 4000 calls daily when the
system went offline. The system featured over a 100,000 shareware files on 19
Gigabytes of file storage. They were charged with distributing copyrighted
commercial software on their BBS. And while the Software Publishers
Association (SPA) was quick to step forward and take credit for the FBI
action, it was actually quite late on the scene with this one. And therein
lies a tale.

Five years ago, Bob Fairburn had a heart attack. A restaurant manager in
Kansas with a wife and children, Fairburn could not obtain life insurance and
was assured by doctors that he had a life expectancy of five years or less.
He pondered for months on how he could somehow assure his family an income
after his death. And he decided that there were two things a man could do in
America to generate ongoing income - write a book or invent something.

So he set out to write the Great American Novel. After months of effort, he
read through his manuscript and decided even he wouldn't buy it. So he cast
about for something he could invent. But again, he found he just didn't have
the inspiration to be an Edison. His son had a small personal computer and
was already writing games in BASIC. Fairburn took a look at it and decided
this was something he could do.

He bought every book he could find on computer programming, and he signed up
on Bob Mahoney's Shorewood Wisconsin EXEC-PC BBS. He downloaded hundreds of
files from the BBS containing code fragments, examples, programming
tutorials, and anything he could find on programming. Starting in BASIC, he
eventually moved on to PASCAL. And he came up with an idea for a program. He
called it HOME DESIGNER and it was basically a simple CAD package to design
home floor plans, place and arrange furniture, and try out various designs
for your home or office.

Fairburn decided shareware wasn't the way to go to generate cash. So he
solicited software distributors for months. Eventually, a company in Florida
called Expert Software picked up the title and launched Expert Home Design -
at the staggering price of $14.95 retail.

According to Fairburn, he only gets fifty cents for each copy sold, but the
program caught on and he reached the point that he was making a living. He
bought a farm outside of Leavenworth Kansas and to get needed physical
exercise, began clearing it and converting it into a wildlife park. He hired
an assistant, and continued software development.

About a year ago, he dialed his old haunt at Bob Mahoney's EXEC-PC BBS, and
there was his commercial software program listed in the download directory
with BBS callers downloading it madly. Stunned, he called Bob Mahoney voice
and asked him about. Mahoney immediately apologized and removed the file from
the directory. In examining the file, they found a small file in it
advertising that it came from Rusty & Edie's BBS. Mahoney explained that
sometimes callers are confused by the difference between shareware software
and commercial software and in an effort to contribute something, they upload
commercial software to bulletin boards sometimes without realizing the
impact. "Most BBS operators will remove it immediately if you call their
attention to it," Mahoney assured him.

So Fairburn dialed Rusty & Edie's BBS and did indeed find his program
available for download there as well. He selected the editor and began
drafting a message to the sysop explaining the situation and asking that the
file be removed. According to Fairburn, while he was typing the message,
Rusty broke into real-time chat and rather rudely told him that he wasn't
responsible for every file that anybody uploaded to the BBS, that they
received megabytes of file uploads each day, and that he would remove the
file whenever he felt like it and got around to it.

Despite the harsh tone, Fairburn accepted this explanation. But when he
called a week later, the file was still there.

"Understand," explains Fairburn, "I'm not Bill Gates. I only get fifty cents
per copy sold, and my family depends on this for a living. This guy was
running a giant bulletin board and taking in lots of subscriptions, and
basically he was stealing my software. I just got mad about it."

Fairburn called the FBI office in Kansas City and complained. They were quite
nice but not very helpful during the call. But about a month later, Fairburn
answered a knock on the door to find an FBI agent on the front porch - there
to investigate his problem. Fairburn took the agent into the den and logged
onto Rusty & Edie's BBS. They logged the session to disk and he showed him
not only his own program in the directory, but copies of Borland's Software,
Novell's LAN software, a number of Microsoft programs, Quicken, and according
to Fairburn, "virtually every commercial game program made."

Fairburn was discouraged to learn that the agent knew nothing about
computers. But he gave him a disk with the logged session on it, some files
they actually downloaded, and a copy of PKZIP so he could extract the files.
He patiently explained what PKZIP did, and why it needed to be done. The
agent thanked him and left - telling him they would turn it over to their
Cleveland office.

Last October, nearly six months after the initial contact, the FBI contacted
Fairburn to ask if he would be willing to fly to Ohio at their expense to
testify against the Hardenburgh's in the event they decided to prosecute the
case. Fairburn agreed as long as they would cover his travel expenses.

He had also notified the publishing company that distributed his software.
And apparently they did contact the SPA. The FBI had apparently contacted
several of the other software vendors whose programs were found in the log
files, and they had in turn contacted the SPA - ergo the SPA involvement.

On January 30th, the FBI served a search warrant on Rusty & Edie's BBS, and
essentially trucked it away - an estimated $200,000 worth of computing

The bust has evoked mixed reactions online. While the eternally concerned on
the Internet were outraged by the Constitutional implications, competing BBS
operators were not quite so adamant. According to Kevin Behrens of Aquila
BBS, a 32-line PCBoard system in Chicago, "Rusty Edie's was the worst-kept
secret in the industry. I don't know if it's a shame or about time."

Bob Mahoney of EXEC-PC was a bit more direct. "In some ways, this is a
competitive situation and every honest sysop is at a disadvantage. Imagine
operating a car wash with a competing car wash across the street. The
difference is that they give away a $20 gold piece with each car wash, but
you aren't allowed to because it is against the law."

Mahoney went on to note, "There's also something a bit annoying about
computer people (BBS operators) ripping off other computer people (software
authors). It's a bit like cannibalism within the family. I have a problem
with that."

Hardenburgh refused to comment on the situation noting the usual advice of
his lawyer not to discuss the case. "I will say I never thought something
like this could happen in America and I'm shocked and very disappointed."
Hardenburgh vowed to have the system back up on new equipment by March 1 at
the (xxx)xxx-xxxx number, and expressed his hope that "his caller base would
back him on this one."

"When this is all over, I want to come out to that ONE BBSCON in Colorado and
tell you all an earful. You're not going to believe what can happen to a
BBS," vowed Hardenburgh.

The situation may be further complicated by a recent change to the copyright
law, ostensibly driven by the SPA. On October 28, 1992, the 102nd Congress
passed Senate Bill 893 - which became Public Law 102-561 revising Title 18 of
the United States Code. Under Section 2319(b) of title 18, the criminal
penalties for copyright infringement were dramatically changed. Previously,
anyone making 1000 copies or more of a copyrighted work were eligible for the
maximum penalty. Under the revision, that is reduced to anyone making 10 or
more copies with a retail value exceeding a total of $2500 or more within a
180-day period. If found guilty, they may be subject to sentences of up to
five years and fines of up to $250,000.

As of this writing, Hardenburgh has not been charged with any crime. Thomas
F. Jones, Cleveland special agent-in-charge noted in a statement that the
Youngstown FBI did serve a search warrant on Hardenburgh's home January 30th.
The warrant alleges the couple illegally distributed copyrighted computer
software programs to bulletin board subscribers without permission of
copyright owners. There was apparently no implication of pornography.

And Fairburn? Well, he's exceeded his five year projected life span and seems
to be doing reasonably will from a cardiac perspective. He did drop a piece
of a tree on his arm with a loader in January and has a bit of a problem with
his arm. But his Expert Home Designer was extremely well reviewed in the
After Hours column of PC Magazine's August '92 issue, and while at $14.95
it's not one of the big dollar generating software packages, numerically it
is the 17th fastest selling software package in America. It's discounted to
as little as $7.95 in grocery stores and apparently the country wants to
rearrange their furniture on screen. The program is available from Expert
Software, PO Box 143376, Coral Gables, FL 33134; (800)759-2562 voice;
(305)443-3255 fax. Bob Fairburn can be reached at 1004 2nd Ave., Leavenworth
KS, 66048; (913)651-3715 voice.

Other BBS operators are concerned by the implications of the raids.
Typically, any BBS is subject to receiving uploads of commercial software
from callers. And while most do a very good job of screening out the obvious
Microsoft Word or Lotus 123 program, there are tens of thousands of
commercial programs like EXPERT HOME DESIGNER that aren't immediately obvious
in an environment that also includes over 100,000 shareware titles that are
perfectly acceptable to carry online.

Most attempts by conscientious  system operators to automate the task of
separating commercial software from shareware software have had very limited
success. Typically, search software examines uploaded .ZIP files to detect
content files with a certain 32-bit Cyclic Redundancy Check (CRC) signature.
But these signatures have not proven to be reliable or unique. Andy Keeves of
Executive Network BBS in Mount Vernon, New York, has devised what may be the
beginnings of a solution. A database has been compiled using the FWKCS
"Content Signature" system made available by Dr. F.W. Kantor of New York with
the cooperation of several software manufacturers. Kantor's system uses a 64
bit signature based on both a CRC of the file and the file length. This is
proving significantly more reliable.

The Executive Network supplies a diskette with instructions to any software
manufacturer on request in order to help them identify critical components of
their work. When the manufacturer submits the generated "signatures" to the
Executive Network, they are incorporated into a database. A software program
automatically deletes any uploads containing one of the registered
signatures. Software manufacturers can request the identification software by
contacting Mr. Black at Executive Network voice (914)667-2150 or by modem at
(914)667-4567. There is no charge for either the diskette or the service. BBS
operators will be able to download the database for their own use at no
charge.  According to Keeves, the database already contains several thousand

Executive Network is one of the largest bulletin boards in the country with
over 12 GB of files online, international e-mail, and vendor support areas.
The Executive Network Information System, 10 Fiske Place, Mount Vernon, NY
10550; (914)667-2150 voice; (914)667-4567 BBS; (914)667-4817.


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