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| Now It's Texas Suing Sony |
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Monday, November 21 2005 @ 04:54 PM EST
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I thought you might like to read the complaint in the new litigation just filed by the State of Texas against Sony. Here you go [PDF]. The article tells us a bit about it:
Texas is suing Sony BMG Music Entertainment, alleging the company illegally installed spyware on millions of music CDs that Attorney General Greg Abbott says can make computers “vulnerable to computer viruses and other forms of attack.” Specifically, it's the Consumer Protection agency in the state, through the Attorney General's office, bringing the action.
Abbott said the spyware installs files onto the computers on which the CDs are played.
"Sony has engaged in a technological version of cloak and dagger deceit against consumers by hiding secret files on their computers," Abbott said. . . . “We share the concerns of consumers regarding these discs..."the company said. That last is a nice touch. I'm smelling a defense on its way, dumping the blame on the company that wrote the rootkit for Sony.
The complaint notes that on Sony's website, it specifically denied that the DRM was malware/spyware: 11. Sony BMG discusses its XCP technology on the website http://cp.sonybmg.com. As part of its frequently asked questions, Sony BMG included the following: “I have heard that the protection software is really malware/spyware. Could this be true? Of course not. The protection software simply acts to prevent unlimited copying and ripping from discs featuring this protection solution. It is otherwise inactive. The software does not collect any personal information nor is it designed to be intrusive to your computer system. Also, the protection components are never installed without the consumer first accepting the End User License Agreement. If at some point you wish to remove the software from your machine simply contact customer service through this link. You will, though, be unable to use the disc on your computer once you uninstall the components. Our technology vendors are constantly looking to improve the product as well as respond to any critical software issues found. Please check here for upgrades to address any known issues.” This is going to hurt Sony, in my opinion. It allows the State of Texas to accuse the company of "intentionally misrepresenting" the facts. And it denies the executives a cluelessness defense, or at least makes it harder. The thing is, this is just one state out of fifty in just one country in the world. Every state in the union has a consumer protection department and an attorney general. I don't see how it can stop with just Texas. This is a money pit, for one thing, for the states. And that isn't to say that they are not being sincere. I'm sure they are. Outrage over what Sony did runs deep. I feel it too. But I'm just saying that when you decide whether or not to sue someone or some company, part of the analysis is whether it's going to be worth the time, expense and trouble of bringing the lawsuit. Here, we're talking deep pockets, so there's no hesitation, I'm sure. Here's the Wherefore clause at the end, telling us what the state of Texas is asking the court to do for relief: 18. WHEREFORE, Plaintiff prays that Defendant be cited according to law to appear and answer herein; and upon notice and hearing TEMPORARY and PERMANENT INJUNCTIONS be issued, restraining and enjoining Defendant, Defendant’s agents, servants, employees and attorneys and any other person in active concert or participation with any Defendant from engaging in practices declared unlawful by the CPACSA, including but not limited to:
A. Offering for sale or selling any good which includes or installs any software which violates the CPACSA by either:
1) Changing the name, location, or other designation of computer software to prevent the owner from locating and removing the software, or
2) Creating randomized or intentionally deceptive file names or random or intentionally deceptive directory folders, formats, or registry entries to avoid detection and prevent the owner from removing computer software.
B. Misrepresenting the extent to which a computer software component must be installed on a computer in order to play a particular type of musical or other content.
19. In addition, Plaintiff STATE OF TEXAS respectfully prays that this Court:
A. Adjudge against Defendant civil penalties in favor of Plaintiff STATE OF TEXAS in the amount of One Hundred Thousand Dollars ($100,000.00) for each violation of the CPACSA, pursuant to CPACSA § 48.102(a);
B. Order Defendant to pay Plaintiff STATE OF TEXAS attorneys’ fees and costs of court pursuant to CPACSA § 48.102(c);
C. Order Defendant to pay all costs of Court, costs of investigation, and reasonable attorney’s fees pursuant to TEX. GOVT. CODE ANN. § 402.006(c);
and D. Grant all other relief to which the Plaintiff STATE OF TEXAS may show itself entitled. So, let's see. I wonder how many victims live in Texas? We know it's half a million in the world, at least, no? Let's say Sony gets sued in every jurisdiction and they end up paying $100,000 per victim, plus all the attorneys' fees. And that's if the state of Texas defines "each violation" as each computer. On the civil side, an attorney who used to work for the US Justice Department has written an article on some of the issues Sony faces legally. It was written fairly early in the outfolding of the story, and with legal matters that can make a difference (for example Sony did apologize and remove CDs from store shelves after the article was published), so you'll have to update in your mind as you read it, but it will give you a very clear overview. He addresses the question: Can Sony's EULA save them?
I wonder how much Sony likes DRM now. What about all the other companies foisting it on the public? Will it save you enough money from lost sales to pirates that you are still ahead of the game financially? I don't wish to pick on just Sony. They are not the only company using DRM in ways that turn my hair white. Didn't we read that EMI was supposed to roll out the same deceitful junk shortly? Do you think they are the only company in the world that creates "randomized or intentionally deceptive file names or random or intentionally deceptive directory folders, formats, or registry entries to avoid detection and prevent the owner from removing computer software"? This article by Harvard's Ben Edelman, "Media Files that Spread Spyware", will get you started on how spyware ends up on your Windows computer. We'll be writing about this subject more and more in the days to come. Do be aware that if you switch to GNU/Linux, none of these things would be happening to you. I have no doubt that companies all over the place are now talking with their lawyers, and here's at least one of the questions: Does our DRM do any of the things listed in this complaint? But I saved the best for last. Here's a statement from a representative of Microsoft that I trust we will all hold them to, starting today:
"A personal computer is called a personal computer because it's yours," said Andrew Moss, Microsoft's senior director of technical policy. "Anything that runs on that computer, you should have control over."
OK. First, have you taken a look at Microsoft's digital rights management? And to Mr. Moss: Please come to my mom's house and fix it so her XP Home computer stops hindering her from adding hardware to her personal computer, will you? Oh, and can you please check and see if Windows MediaPlayer is calling home to your company? She isn't able to control her own personal computer, even though it's hers. She added some hardware, and now XP Home won't let her print her documents unless she calls you up and gets you to agree. Oh, and about this Trusted Computing thing that some say causes us to lose control of our personal computers... Can we talk?
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| Authored by: heretic on Monday, November 21 2005 @ 05:00 PM EST |
| If any :-) [ Reply to This | # ]
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| Authored by: heretic on Monday, November 21 2005 @ 05:04 PM EST |
Over Top threads should go here please.
Remember to use proper link formats
<a href="www.example.com">www.example.com</a>
Also use HTMLFormatted if using links
Thanks[ Reply to This | # ]
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| Authored by: Nick_UK on Monday, November 21 2005 @ 05:12 PM EST |
I wonder what the morals are of the coders (who obviously know their stuff [or
rather MS insecure hooks]) that do this?
I would refuse if it was me, I know that - and I think if sacked (here in the UK
at least) I would stand a fair chance of wrongful dismissal.
Thoughts?
Nick[ Reply to This | # ]
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- Morals. - Authored by: tiger99 on Monday, November 21 2005 @ 05:35 PM EST
- Morals. - Authored by: seeks2know on Monday, November 21 2005 @ 05:48 PM EST
- Morals. - Authored by: Anonymous on Tuesday, November 22 2005 @ 03:10 AM EST
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| Authored by: jig on Monday, November 21 2005 @ 05:12 PM EST |
my guess is that Blu-ray and HD-DVD are shaking in their boots. the type of
stuff they've put into drm for those disks is crazy, and i bet the stuff i
haven't head of yet are similar to what went down here.
at the very least, you know they're already rewriting their eulas.[ Reply to This | # ]
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| Authored by: blacklight on Monday, November 21 2005 @ 05:14 PM EST |
"He addresses the question: Can Sony's EULA save them?"
The question is: does Sony's EULA fulfill an informed consent requirement? If
the answer is no, then Sony is up to its corporate neck in legal quicksand.
---
Know your enemies well, because that's the only way you are going to defeat
them. And know your friends even better, just in case they become your enemies.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 21 2005 @ 05:16 PM EST |
It seems like when this story first broke, Sony was updating on almost a daily
basis both its EULA and the FAQs section of its website that dealt with XCP.
Some of the revisions seemed outright false, such as the one that vehemently
denied that the XCP software presented a security risk to computers on which it
was installed. I think Russinovich talks about some of these revisions on his
blog. I hope that some enterprising people kept track of all those updates and
will take the time to provide a copy with timeline to the Texas AG and other
parties who are filing lawsuits. I thought about archiving all those changes
myself and now wish I had done so.[ Reply to This | # ]
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| Authored by: tiger99 on Monday, November 21 2005 @ 05:18 PM EST |
| Good. It is time that badly behaving big businesses were dealt with swiftly by
the authorities. If Sony lose a lot of money worldwide, and certain of their
executives end up in jail, in countries where criminal offences have been
committed, it might serve as a useful deterrent and make others behave more
responsibly for a while. I have not heard of any proposed legal action in the
UK as yet, but here it seems unlikely that the offending executives, possibly of
the company who wrote the software, rather than Sony, would escape jail under
the Computer Misuse Act, because the fact that they claim to be experts in their
field more or less removes the only defence under the Act, which is one of
ignorance. IANAL, but I like to see this particular law used when appropriate,
as a deterrent, and this is one of these occasions. Just the other day, the
newspapers mentioned two virus writers who went to jail, and they had done far
less damage than this. Of course justice ought to extend to other business
interests which intentionally flout the law, including a well-known Criminal
Monopoly...... [ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 21 2005 @ 05:19 PM EST |
Back in the early 90's Gerald Ratner owned a massively profitable eponimous
jewelery chain in the UK. They were on every high street and going from strength
to strength.
Then in 1991, in an unguarded moment in the presence of journalists, Gerald made
this comment to the Institute of Directors in London:
"We also do cut-glass sherry decanters complete with six glasses on a
silver-plated tray that your butler can serve you drinks on, all for £4.95.
People say, 'How can you sell this for such a low price?' I say, because it's
total crap.'"
Within days he was ousted from the Board, the company's shares nosedived and
they only survived, just, by completely wiping his name from their stores,
stationery, history, records, etc.
His gaffe has become so legendary that "Doing a Ratner" has entered
the language of the City as shorthand for not so much shooting yourself in the
foot but shooting yourself, and your company, in the head with a metaphorical
bazooka!
Perhaps in future we'll talk about the Hesse Effect after Mr Thomas Hesse of
"Most people, I think, don't even know what a rootkit is, so why should
they care about it?" fame?
In the meantime, perhaps Mr Hesse should reflect on the fact that, as Gerald
Ratner so spectacularly showed, customers don't like being told they're so
stupid they'll buy (or buy into) anything.
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| Authored by: Anonymous on Monday, November 21 2005 @ 05:23 PM EST |
That seems quite high. In other cases, I hear of settlements in the range of a
tank of gas, or maybe a "gift certificate" for $20. Per
complaintant.
[ Reply to This | # ]
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- $100,000? Yes it's high for an individual, but.... - Authored by: DFJA on Monday, November 21 2005 @ 05:57 PM EST
- $100,000? - Authored by: John Hasler on Monday, November 21 2005 @ 06:10 PM EST
- $100,000? - Authored by: Anonymous on Monday, November 21 2005 @ 06:29 PM EST
- $100,000? - Authored by: Anonymous on Monday, November 21 2005 @ 07:20 PM EST
- $100,000? - Authored by: Anonymous on Tuesday, November 22 2005 @ 06:41 AM EST
- $100K is the statutory penalty - Authored by: digger53 on Monday, November 21 2005 @ 07:27 PM EST
- I look at Sony's theoretical liability as - Authored by: Anonymous on Monday, November 21 2005 @ 08:07 PM EST
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| Authored by: Stumbles on Monday, November 21 2005 @ 05:35 PM EST |
Frankly, I'd like to see Sony get really hammered over this. While
they and their cohorts think nothing about suing 10 year olds,
grandmas and basically anyone who *has not resold* their
*illgotten* gains. It's about time they, Sony, wear that other shoe.
Since they expect people to abide by the law, it is now their turn to
pony up to the bar and *pay* their dues.
---
You can tune a piano but you can't tune a fish.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 21 2005 @ 05:41 PM EST |
If I go out and buy a Sony CD right now, can I get $100,00.00? (I Live in
Texas!)
Not that I would, being a devoted (moral) reader of Groklaw.... :)[ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 21 2005 @ 05:43 PM EST |
sorry, as far as I know, a corporation cannot offload responsibility for a
wrongdoing onto it's subcontractors... the management is ultimately responsible
for it, and they have to sue the subcontractors themselves. But they themselves
are still responsible to the customers.[ Reply to This | # ]
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| Authored by: joef on Monday, November 21 2005 @ 06:02 PM EST |
I had been wondering about the "Sony BMG" bit (questions in some
previous posts). I finly see in the Texas complaint that the formal title is
"Sony BMG Music Entertainment LLC". Is this a joint venture or some
similar arrangement under the law of ?? (wherever they're legally set up?)
Googling on the title only showed the news article about the Texas suit.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 21 2005 @ 06:04 PM EST |
Just wondering,
If many states, companies or organizations (EFF) are currently suing Sony,
wouldn't it be more effective if a federal court handles this? I believe chances
of settlements would be avoided that way. Because the last thing record
companies, or other DRM opponents (MS) want is to have a legal ruling on DRM.[ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 21 2005 @ 06:27 PM EST |
The irony of this all, is that Sony, so worried with defending its copyrighted
material, now has multiple copyright infringements in its DRM, multiple
occurrences of GPL and LGPL software. First it was LAME <a
href="http://www.the-interweb.com/serendipity/index.php?/archives/52-Is-Son
y-in-violation-of-the-LGPL-Part-II.html">LAME GPL
infringement</a>
and now it's LAME, and FAAC, and mpg123
<a
href="http://www.the-interweb.com/serendipity/index.php?/archives/56-Two-ne
w-F4I-license-infringements-found.html">FAAC and mpg123
violation</a>
and possible 4th violation, from VLC's libmp4 code
<a
href="http://www.the-interweb.com/serendipity/index.php?/archives/54-Breakt
hrough-after-breakthrough-in-the-F4I-case.html">VLC libmp4</a>
There goes Sony's talk about defending copyrights and IP.[ Reply to This | # ]
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| Authored by: kawabago on Monday, November 21 2005 @ 06:44 PM EST |
I bet Mass.
---
TTFN[ Reply to This | # ]
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| Authored by: Anonymous on Monday, November 21 2005 @ 06:54 PM EST |
... as a warning to the next ten generations that some things come at too high a
price.
[With apologies to J. Michael Straczynski]
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| Authored by: Anonymous on Monday, November 21 2005 @ 07:07 PM EST |
At $100,000 per complaint and 500,000 complaints Texas is looking at 50
*billion* (with a B) dollars. Let's be generous and assume 10% of victims (and I
use the word deliberately) live in Texas.
Now, of course let's assume that 500,000 is a *minimum* figure since some 52
titles at this point have XCP, and oh geez...
Makes the Big Tobaco settlement look like pocket change. Could perhaps other
members of RIAA be at risk as well? :) Could we be seeing karma running over
RIAA dogma? You know, live by the lawsuit, die by the lawsuit? lol
Now ordnarily I abhor government class action suits, but in this one particular
case the irony is just too "suite" to let go!
Oh, and let's not forget all those copyright violations of the LGPL (and GPL too
maybe?). What does BSA charge? $250,000 *per incident*? Perhaps OSS should take
a page from BSA?
Oh, and let us also remember while B4I is directly responsible for the software,
they were acting as a duly authorized agent of Sony, making Sony legally
responsible...
Am I being too hopeful here?[ Reply to This | # ]
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| Authored by: jsusanka on Monday, November 21 2005 @ 10:27 PM EST |
"OK. First, have you taken a look at Microsoft's digital
rights management? And to Mr. Moss: Please come to my
mom's house and fix it so her XP Home computer stops
hindering her from adding hardware to her personal
computer, will you? Oh, and can you please check and see
if Windows MediaPlayer is calling home to your company?
She isn't able to control her own personal computer, even
though it's hers. She added some hardware, and now XP Home
won't let her print her documents unless she calls you up
and gets you to agree. Oh, and about this Trusted
Computing thing that some say causes us to lose control of
our personal computers... Can we talk? "
way to go PJ - you keep going - all these companies are
all together no matter what comes spewing out of their
mouths.
you know all these companies knew good and well what they
were doing. and the spyware, viruses, and microsoft
companies were all in with them.
this is why open source hasn't not taken off. it ruins
these companies business models and keeps the innocent
citizens protected from these vultures. and all these
companies keep funding fud because they are making
millions from these false business models.
the anti-spyware, anti-spamware and anti-viruses are a
business models - and linux, bsd, and open solaris puts
these models out of business. [ Reply to This | # ]
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| Authored by: Felix_the_Mac on Tuesday, November 22 2005 @ 04:57 AM EST |
"Do be aware that if you switch to GNU/Linux, none of these things would be
happening to you."
I contend that if your mum or your 12 year old niece was running Linux it would
be (or would have been until now) entirely possible for Sony to sell them a
music CD which did exactly the same thing.
Sure, they might have had to enter the root password, but so would any clueless
users running windows as other than Administrator.
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| Authored by: Matt C on Tuesday, November 22 2005 @ 01:41 PM EST |
| (yes this is a dupe)
This might be a good opportunity to learn more about
intellectual property issues specifically as they relate to Texas law, and what
we can do about them. Groklavians who want to chat in-depth on this issue are
invited to the Texans vs. Sony page at
Artists for File
Sharing [ Reply to This | # ]
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| Authored by: Pogue Mahone on Wednesday, November 23 2005 @ 04:37 AM EST |
| I like this claim:
B. Misrepresenting the extent to which a computer
software component must be installed on a computer in order to play a particular
type of musical or other content.
Now, let me see. My computer is
perfectly capable of playing audio CDs without me having to install any extra
software. So *ANY* claim that I need to install a "special" player is
misrepresentation. Just about all of these so-called copy protection measures
(certainly all those of the type that can be defeated by holding down the shift
key) misrepresent the extent to which the software must be installed in order to
play the music.
This case would set a rather nice precendent :-) [ Reply to This | # ]
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| Authored by: Pogue Mahone on Wednesday, November 23 2005 @ 04:40 AM EST |
| I like this claim:
B. Misrepresenting the extent to which a computer
software component must be installed on a computer in order to play a particular
type of musical or other content.
Now, let me see. My computer is
perfectly capable of playing audio CDs without me having to install any extra
software. So *ANY* claim that I need to install a "special" player is
misrepresentation. Just about all of these so-called copy protection measures
(certainly all those of the type that can be defeated by holding down the shift
key) misrepresent the extent to which the software must be installed in order to
play the music.
This case would set a rather nice precendent :-) [ Reply to This | # ]
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