RE: Smart Contracts in a Free Society
When you are a partner all actions you take as a partner will have to be considered, and draining the funds was an action that caused harm to other partners.
Actually, the attacker has a very strong case and is likely to win in a court of law, as stated in the opening sentence of "his" letter:
I have carefully examined the code of The DAO and decided to participate after finding the feature where splitting is rewarded with additional ether.
Especially when we consider the crucial sentence from the DAO's terms & conditions:
The DAO’s code controls and sets forth all terms of The DAO Creation.
Was the DAO explicit about losses from bugs?
Yes, it was very explicit:
The DAO concept is both experimental in nature and unproven. There is a risk that, as an open source project, any contributor to The DAO’s software could introduce weaknesses or bugs into the DAO software, causing the loss of DAO tokens or ETH in one or more or even all of the DAO Token Holder’s accounts.
It's not likely to win in court because the attacker can never expose themselves without taking risks. And the court is not likely to side with the attacker. In any case if the attacker were to bring it to court the community might view the attacker as some kind of government plant to bring down all of crypto including Bitcoin and Bitshares.
The whole point of decentralized governance on the blockchain is to be self governing. Self governing requires taking responsibility when things go wrong. If there is a hard fork because something went wrong and the developers of the smart contract say it's a bug, then the exploiter has no legal leg to stand on anymore. It's only if we find that the developers of the smart contract say it's a hidden feature that there might be some chance but even then I highly doubt anyone would win because it would be in court in all jurisdictions where some would win and some would lose and no one would know what would happen.
It would be bad for everyone.