I was talking to my girlfriend last night after reading The Attacker's Open Letter. She's a law student focusing her studies on property and contracts and trusts and such. She is by no means an expert, nor am I in crypto currencies, but as I started explain what I understood of smart contracts and the events of TheDOA. Her eyes widened. "The courts are not set up to handle something like this."
Until that letter, I hadn't thought much about the legal implications. If TheDAO's attacker decides to sue after the hard fork, the legal battle will be a historic, and the decision, foundation setting. There will be some major, high-stakes challenges. Here's some of the trouble we foresee them having:
• First of all, the judge who receives the case most likely won't know what a smart contract is.
• There is zero case law to site.
• A jury will be baffled, and if they aren't they probably have bias.
• Only a small number of attorneys can understand code, because until now it has been near unnecessary for their career, even in tech law.
• The credibility of any expert witness regarding smart contracts will be in question based on the fact that ethereum smart contracts are brand new, and it was the groundbreaking contract that screwed up, meaning there is no assumed performance structure.
• Do the terms and conditions/written agreement of the contract's function decide the available legal actions within the contact, or is it the open-sourced code itself that drives that? What if the two differ?
• Changing the code alters the functions. Can the code of ethereum legally be changed after people bought it as property that preforms a specific function?
There is so much more. Personal feelings about TheDAO aside, I hope etheruem hard-forks, and I hope the attacker sues. The case will take years to settle itself out. Think of the press, the exposure to mainstream media. Think of the impact on the legal field and justice system. Smart contracts had to go through the courts to establish themselves. What better way to go through it, than with millions on the line?
With the trusted value of Bitcoin, and the possible emergence of Steemit as Reddit's direct competitor providing mainstream access to crypto currency. A giant legal battle for etheruem over its smart contracts may be exactly what is needed to keep it from becoming a footnote. So the three can work together.
