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A Proposed Settlement in NY Class Action Sony Litigation
Thursday, December 29 2005 @ 09:06 PM EST

Alex Eckelberry and Michael Geist are both reporting a proposed settlement [PDF] in one of the Sony XCP/MediaMax lawsuits, In re SONY BMG CD Technologies Litigation. Geist writes this:
While the settlement still requires court approval, it makes for an interesting read since it may provide the starting point for a future statute that protects against the misuse of digital rights management technologies....

The settlement has two broad goals: compensate consumers for the harm they suffered from both the XCP and Media Max DRM software and place limits on Sony's use of DRM. The compensation for XCP purchasers includes the replacement of the CD with a version without copy-protection and the choice of either (i) US$7.50 plus one free album download or (ii) three free album downloads (Sony will select at least 200 eligible titles). The compensation for Media Max offers fewer free album downloads. The most notable aspect of this part of the settlement is that Sony will undertake to provide the free downloads from at least three music download services including Apple iTunes. The irony of Sony being forced to offer Apple iTunes downloads when a prime reason for inserting the DRM software was to combat Apple iTunes should not be lost on anyone.

More interestingly (at least to non-class action lawyers) is the undertakings on Sony's future DRM use.

Of course, I ran to Gerard Gibbs' web site to see what I could find out for us. Gerard Gibbs is one of the attorneys representing the proposed class. He's also the attorney representing the plaintiffs in the Apple iPod battery class action litigation and the one against MCI for improper billing. If you are interested, here is a list of other cases handled by the firm.

Sure enough, he has information on his web site regarding the proposed settlement, including a summary of the settlement terms, and the Settlement Agreement [PDF] itself, referenced in the proposed settlement, titledPlaintiff's Application for Preliminary Approval of Class Action Settlement [PDF], filed with the US District Court for the Southern District of New York. The affidavits, with the proposed order attached and the proposed notices, can be obtained from

Here's what Gibbs' site tells us:

SONY BMG Music Entertainment, SunnComm International, Inc. and First 4 Internet, Ltd. have agreed to settle a nationwide class action lawsuit involving security flaws in the digital rights management software contained on millions of SONY BMG music CDs.

Girard Gibbs achieved the proposed settlement in its capacity as court-appointed Plaintiffs’ Co-Lead Counsel in the class action lawsuit, In re SONY BMG CD Technologies Litigation, Case No. 1:05-cv-9575-NRB, pending in the United States District Court for the Southern District of New York.

The settlement, if approved, will resolve claims that SONY BMG, SunnComm and First 4 Internet engaged in deceptive conduct in designing, manufacturing and selling CDs containing Extended Copy Protection (“XCP”) and MediaMax software without adequately disclosing the limitations the software imposes on the use of the CDs and the security vulnerabilities the software creates.

The summary of settlement benefits page adds this:

Under the settlement, anyone in possession of an XCP CD can exchange it for a replacement CD, an MP3 download of the same album, and either (a) a cash payment of $7.50 and one free album download, or (b) three free album downloads. Purchasers of CDs containing MediaMax 5.0 software will receive a free MP3 download of the same album and one additional free album download. Purchasers of CDs containing MediaMax 3.0 software will receive a free MP3 download of the same album.

Here are some highlights from the proposed settlement:



Plaintiffs submit this application for preliminary approval of a proposed settlement in this consumer class action brought on behalf of people who purchased, received, possessed or used a compact disc (“CD”) containing SONY BMG Music Entertainment’s content protection software known as Extended Copy Protection (“XCP”) or MediaMax. Plaintiffs assert claims against Defendants SONY BMG Music Entertainment (“SONY BMG”), First 4 Internet, Ltd. (“F4I”), SunnComm International Inc. (“SunnComm”). The settlement will resolve all claims before this Court and all claims in related actions nationwide.

Under the terms of the settlement, Defendants agree to:

• stop manufacturing SONY BMG CDs with XCP software (“XCP CDs”) and SONY BMG CDs with MediaMax software (“MediaMax CDs”);

• immediately recall all XCP CDs;

• provide software to update and uninstall XCP and MediaMax content protection software from consumers’ computers;

• ensure that ongoing fixes to all SONY BMG content protection software are readily available to consumers;

• implement consumer-oriented changes in operating practices with respect to all CDs with content protection software that SONY BMG manufactures in the next two years;

• waive specified provisions currently contained in XCP and MediaMax software End-User Licensing Agreements (“EULAs”);

• refrain from collecting personal information about users of XCP CDs or MediaMax CDs without their affirmative consent; and

• provide additional settlement benefits to Settlement Class Members including cash payments, “clean” replacement CDs without content protection software, and free music downloads.

....7. Injunctive Relief Required By The Settlement Will Effectuate Changes In Defendants’ Use Of Content Protection Software

SONY BMG has agreed to implement the following changes in operating practices and procedures with respect to XCP, MediaMax, and any and all future content protection software technologies that SONY BMG may use on CDs that it manufactures or issues, from the present to 2008. (¶¶ II.D., IV.B.) These changes will be enforceable either through an agreement with state and/or federal government authorities or by an injunction from this Court. (¶¶ IV.A., B.)

SONY BMG will not manufacture or distribute XCP CDs. (¶ IV.B.1.) SONY BMG also will not manufacture MediaMax 3.0 CDs or MediaMax 5.0 CDs. (¶ IV.B.2.)

In addition, before manufacturing and issuing any CDs with content protection software at any time until 2008, SONY BMG will: (1) ensure that the content protection software that is contained on any such CDs will not be installed on a user’s computer, unless and until the user affirmatively accepts the EULA; (2) ensure that an uninstaller for the content protection software is made readily available to consumers; (3) ensure that the functionality of any updates and/or material changes in the functionality of the copy protection software that is used on any such CDs is adequately disclosed; (4) ensure that the EULA associated with the content protection software used on any such CDs accurately describes the nature and function of the software in plain English; (5) obtain comments about the EULA associated with the content protection software contained on any such CDs from an independent third-party designated jointly by the parties; (6) obtain an opinion from at least one qualified, independent third-party that the content protection software used on any such CDs is effective and would not create any known securities vulnerabilities; (7) ensure that SONY BMG will only be able to collect limited information from the CD user necessary to provide enhanced functionality to any such CDs, namely album title, artist, the computer user’s IP address, and certain non-personally identifiable information, without the user’s express consent ; (8) include on the jewel case a written disclosure in plain English that the CD contains content protection software and a brief description of the software; and (9) fix security vulnerabilities discovered in the content protection software contained on any such CDs through software updates verified as secure by a computer security expert. (¶¶ IV.B. 3(a)-(h).) ...

3. The Settlement Falls Within The Range Of Possible Approval

As explained above, the proposed Settlement was reached only after protracted arm’slength negotiations between the parties and Plaintiffs’ Co-Lead Counsel’s thorough consideration of the advantages and disadvantages of continued litigation. Plaintiffs’ Co-Lead Counsel believe this settlement achieves all of the objectives of the litigation, namely removing harmful XCP software from the market, stopping the continued release of MediaMax CDs, compensating people who unknowingly installed the software on their computers, fixing security vulnerabilities in XCP, MediaMax and SONY BMG’s future copy protection software, and ensuring that SONY BMG will provide complete and accurate disclosures in its EULAs for future content protection software. Plaintiffs’ Co-Lead Counsel, law firms with a great deal of experience in the prosecution and resolution of class actions and complex consumer litigation, have carefully evaluated the merits of this case and the proposed settlement. Even if the matter were to proceed to trial, Plaintiffs’ Co-Lead Counsel acknowledge, based on past, real-world experience, that the apparent strength of a plaintiff’s case is no guarantee against a defense verdict. Furthermore, even if a judgment were obtained against Defendants at trial, the relief might be no greater, and indeed might be less, than that provided by the proposed Settlement.

Under the Settlement, SONY BMG will be enjoined from using XCP and MediaMax software on audio CDs they manufacture. SONY BMG will implement several changes to its policies and procedures concerning content protection software and the EULAs associated with that software. These changes will ensure that the content protection software will not be installed without the user’s express consent, will be removable from the user’s computer, and will not render the user’s computers vulnerable to known security risks. In addition, the EULA’s will be written in plain English and will accurately describe the nature and function of the content protection software.

The XCP Exchange Program is designed to ensure that the XCP CDs are removed from the market as soon as possible and to provide consumers with replacement CDs as well as downloadable music files. The MediaMax compensation will also provide benefits to consumers who unknowingly installed such software on their computers and exposed their systems to security vulnerabilities. In addition, Defendants will continue to make available software utilities that will update and remove the XCP and MediaMax software from a user’s computer.

Defendants have committed that the do not and will not collect, aggregate or retain certain personal information on the computer users who listen to SONY BMG CDs without the express consent of those users. Under the settlement, Defendants will be required to engage an independent expert to verify their practices with respect to collection of personal information.

Defendants have agreed to waive certain of their rights under the XCP and MediaMax EULAs. These waivers will allow consumers to remove the XCP and/or MediaMax software from their computers, listen to the audio files across all file formats and in all portable music players, and choose not to download future updates of the XCP or MediaMax software. Once these provisions are waived, consumers will not have to be in possession of the SONY BMG CD to hold a license for the audio files, will not be precluded from copying music files and other digital content on the CDs, will be allowed to resell the CDs, and will not lose their licenses for the software if they file for bankruptcy protection or are declared insolvent. Also, Defendants waive their rights to be indemnified by users of the XCP or MediaMax software for harm arising from their use of the software.

Finally, the settlement operates as a floor, not a ceiling, on benefits available to Settlement Class Members. Accordingly, if SONY BMG enters into other agreements with state and/or federal government authorities that provide additional benefits to certain consumers, SONY BMG will offer those same benefits to all Settlement Class Members. All of these measures are of particular value to Settlement Class Members.

In light of the above considerations, the proposed settlement as a whole falls within the range of possible final approval. The Court should therefore grant preliminary approval of the settlement and direct that notice of it be given to the Settlement Class.


A Proposed Settlement in NY Class Action Sony Litigation | 187 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Authored by: Anonymous on Thursday, December 29 2005 @ 09:08 PM EST
As if.

--Bill P, not a lawyer. Question the answers, especially if I give some.

[ Reply to This | # ]

Off Topic
Authored by: Anonymous on Thursday, December 29 2005 @ 09:12 PM EST
Please submit linky things in Post Mode: HTML Formatted, and use the red hints
as your guide.

--Bill P, not a lawyer. Question the answers, especially if I give some.

[ Reply to This | # ]

Proposed Settlement has no serious penalty
Authored by: SpaceLifeForm on Thursday, December 29 2005 @ 09:34 PM EST
It's a joke. Really. So SONY has to provide some stuff to the users if they jump through hoops to prove they bought the CD.

SONY can re-do the DRM in a couple of years.

SONY has no penalty in terms of cleaning up infected machines.

SONY is gaming the system. They are attempting to get the court system to legitimize DRM software on CDs. (Incidently locking the end-user to Windows).

It should not be accepted.

[ Reply to This | # ]

What would happen if I dstributed a root-kit?
Authored by: Anonymous on Thursday, December 29 2005 @ 09:35 PM EST
Do you think I would avoid jail time?

There should be criminal charges against someone over this.
I would like to see some of the RIAA members saying for years to come:
"Remember what happened to that company named Sony"

[ Reply to This | # ]

  • Probably - Authored by: Anonymous on Thursday, December 29 2005 @ 09:43 PM EST
  • Lotsa Luck - Authored by: Anonymous on Thursday, December 29 2005 @ 09:59 PM EST
    • exactly. n/t - Authored by: Anonymous on Friday, December 30 2005 @ 01:07 AM EST
Who's Zooming Who?
Authored by: TheBlueSkyRanger on Thursday, December 29 2005 @ 09:38 PM EST
Hey, everybody!

Unfortunately, there's a mitigating factor in all of this: who approached who
with this settlement agreement? It could tell a lot about Sony's sincerity.

A report off Yahoo just as I logged in said that record sales were down 7% from
last year. And Sony has to be hurting. Otherwise, they wouldn't be going nuts
with the damage control over the rootkit, among other things.

Considering the offensive arrogance Sony has displayed ("Most people don't
know what a rootkit is, so why should they care?"), I'm not sure why they
would come up with it or why they would even agree to it assuming they didn't
draft it first.

Unless they are taking a bigger beating than anyone suspects. And as M$ has
shown, you can push legal settlements in creative directions. And what about
EMI? I recall them saying all their titles would be copy protected by the end
of the year.

This Christmas, my family took me to a record store and offered me my choice of
ten CD's. I random sampled several, and you better believe I checked to see if
Sony made them first.

Dobre utka,
The Blue Sky Ranger

All I wanted for Christmas was an Ogg Vorbis player. I got a red fire truck

[ Reply to This | # ]

I'm unhappy that no-one is being held criminally responsible
Authored by: prayforwind on Thursday, December 29 2005 @ 09:44 PM EST
After all, those who distributed Sobig, Lovebug, etc went to jail, right?
Doesn't seem fair that it's not considered criminal to distribute malware as
long as you're employed by a corporation to do it. What's the difference?

I hope it doesn't soon become OK to murder competitors as long as the
perpetrator's company pays them to do so.

jabber me:

[ Reply to This | # ]

A Lousy Deal
Authored by: Anonymous on Thursday, December 29 2005 @ 10:23 PM EST
This proposed deal is just awful.

First, a downloaded 'album' is no substitute for a CD. Its sound quality will
not match a CD and will deteriorate further every time it's transcoded.

Secondly, these consumers preferred to purchase physical CDs as artwork-bearing
artefacts from a supposedly legitimate source instead of accepting an intangible
download from a P2P network. They will surely feel shortchanged when an
intangible download is substituted for their physical CD.

Thirdly, the proposed options are (1) download or (2) download. Not every
CD-purchasing consumer has the equipment or bandwidth to undertake music

Fourthly, the downloaded albums may well be DRM infected (certainly in the case
of iTunes) to the detriment of the consumer's rights of resale etc etc.

Lastly, US$7.50 scarcely begins to cover the costs of making whole the Windows
PCs damaged by Sony. They must pay the realistic cost of re-imaging. No
criminal prosecutor or corporate victim would ever accept a per-PC cleanup cost
of just $7.50.

One almost wonders whether Sony is actually maneuvering to retain 0wn3rship of
its recently acquired zombie network.

To endorse this deal would be to betray the interests of those damaged by Sony's

[ Reply to This | # ]

Missing from the proposed settlement
Authored by: Anonymous on Thursday, December 29 2005 @ 10:36 PM EST
I don't see any DMCA waivers for people investigating the Sony DRM.

[ Reply to This | # ]

A Proposed Settlement in NY Class Action Sony Litigation
Authored by: Anonymous on Thursday, December 29 2005 @ 11:06 PM EST
This is really fast!!! Doesn't this kind of stuff usually take years?? They must
be in a hurry.

[ Reply to This | # ]

A Proposed Settlement in NY Class Action Sony Litigation
Authored by: Anonymous on Thursday, December 29 2005 @ 11:34 PM EST
This is a payoff for the Lawyers. End users will get nothing other than access
to 200 songs that Sony couldn't sell. Its pretty standard for a class action
suit, lawyers get a big payoff, the harmed parties get nothing of any value.

[ Reply to This | # ]

All US readers, please send a request to with withdraw from this settlement
Authored by: Anonymous on Friday, December 30 2005 @ 12:05 AM EST
See chapter III D, 'Defendants’ Limited Right To Withdraw From Settlement'.

It says,

'Defendants have the right to withdraw from the settlement, if the number of
timely and valid requests for exclusion from the Settlement Class exceeds

So, if just enough people from Groklaw would send such valid request, I think
this settlement would be invalidated. PJ, could you help to prepare a valid form
to send?

I'm Finnish so I can't send such requests. I just can hope that enough people do
it _now_.


(I have groklaw account but didn't bother to find my
password smartcard to send this comment)

[ Reply to This | # ]

A Proposed SHAFTING in NY Class Action Sony Litigation
Authored by: David Dudek on Friday, December 30 2005 @ 12:36 AM EST
Do you believe they would settle for 10 million downloads as THEIR fee?
Looks like QUICK money in their pockets rather than looking out for the injured
The courts should reject this 'settlement' and replace the attorney!

David Dudek

[ Reply to This | # ]

Criminal charges aren't precluded
Authored by: Anonymous on Friday, December 30 2005 @ 12:49 AM EST
If I burn down ten houses and I reach an agreement with nine of the owners, the
tenth can still have me criminally charged with arson. Also, a settlement in
one jurisdiction doesn't stop charges in another.

[ Reply to This | # ]

A Proposed Settlement in NY Class Action Sony Litigation
Authored by: Anonymous on Friday, December 30 2005 @ 01:59 AM EST
In the case of SunnComm, the settlement only stops manufacture of MediaMax 3.0
and 5.0 CDs for 2 years. SunnComm have already completed MediaMax 5.1, so
presumably, these can be released so long as they comply with the other terms of
the settlement.

[ Reply to This | # ]

The Actual Value of an Album's worth of music
Authored by: Anonymous on Friday, December 30 2005 @ 03:42 AM EST
$7.50 + 1 album download


3 album downloads


So, according to Sony, 2 albums' worth of music has an actual value of $7.50.
That's $3.75 per album.

Why the $20+ per CD?

Or to be more accurate since this is downloads we're talking about... why $10
for a full 10-song CD on iTunes, more for more songs?

Sony has to admit either 1 of 2 things here:
1) The "cash" option is actually screwing people over, or
2) Their product is highly overpriced in the first place.

Yeah, we all know #2 is correct, but hearing them admit it would be good for a

They should be forced to pay the regular retail overpriced value of a CD, not
such a non-value.

[ Reply to This | # ]

How nice: you can keep your licenses if bankrupt
Authored by: Anonymous on Friday, December 30 2005 @ 06:17 AM EST
I am astounded that this clause in the settlement is necessary:

"...will be allowed to resell the CDs, and will not lose their licenses for
the software if they file for bankruptcy protection or are declared

Does Sony really claim the right to retake title to a product they sold, just
because the purchaser goes bankrupt? I suppose it it consistent with the DRM
notion that you don't "own" your CD, but why even assert the right to
take back an asset with a value of $7.50 (probably much less).

Overall it does sound like a lousy settlement.

[ Reply to This | # ]

This settlement is a trojan horse!
Authored by: Wol on Friday, December 30 2005 @ 06:39 AM EST
Bear in mind that, as far as I can tell, I have had a system trashed by
MediaMax. Now read what's on offer to me ...

There's an XCP exchange program. Bully for Sony - my CDs aren't XCP so I can't
exchange them. Oh - and anyway, in order to take advantage of the exchange, I
have to affirm that I've run Sony's XCP updater or uninstaller - well my system
got trashed so I can't run the updater or uninstaller because XCP is no longer
on my system. I removed it with "format"!

If I'm running MediaMax, I get "extra" compensation. But why then does
the exchange program go on about XCP-protected CDs? Why doesn't it just say
protected CDs? That's not "extra", that's "different".

So my "extra" compensation is to be given mp3s of the stuff I've
already paid for - bully for Sony again. Most of the stuff I listen to is
classical - and I want to listen to the CD, not an mp3! Likewise, the
"extra album". What's the betting that NONE of them hold *any*
*interest* *whatsoever* for me? Anyways, I'm on dial-up - I don't download
precisely because it jams up my phone system for HOURS!

As I see it, even if I were an American and able to take advantage of it, this
offer leaves me just as stuffed as I was before - I have a bunch of poisoned CDs
which I daren't play and can't exchange. So no change from the status quo ante
... what was the point of the settlement, again?


[ Reply to This | # ]

A Proposed Settlement in NY Class Action Sony Litigation
Authored by: blacklight on Friday, December 30 2005 @ 07:08 AM EST
I find Sony BMG's eagerness to settle somewhat puzzling.

(1) Are they trying to dodge our State Attorney General Elliott Spitzer, because
he might negotiate a tougher deal?

(2) Are they negotiating for themselves this deal, so that they can use it to
preempt any further lawsuits that come along?

Clearly, Sony BMG does not want to go to trial. If Sony BMG did go to trial and
I was the lawyer for the plaintiff, I'd be looking for a way to quote Stringer's
statement about spyware at least three times a day to put the jury into the
proper hanging mood.

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 | # ]

What about all the SunnComm CDs floating around?
Authored by: Altair_IV on Friday, December 30 2005 @ 07:19 AM EST
The thing that struck me right off was that, while they will be recalling the
XCP-laden CDs from the market, there seems to be absolutely no provision for
getting rid of the MediaMax ones. Since compact disks are a read-only medium,
this means that all those CD's that have already been sold will continue to
exist, and continue to infect machines for well into the future.

Doesn't seem right to me.

The poster formerly known as m(_ _)m

Monsters from the id!!

[ Reply to This | # ]

A Proposed Settlement in NY Class Action Sony Litigation
Authored by: Anonymous on Friday, December 30 2005 @ 08:04 AM EST
This is a true junk settlement. Is this lawyer on Sony's payroll???

They have to buy back the discs at $7.50 each? Heck, it costs me near $15.99 for
most CDs in stores.

The consumer gets "free" downloads from a limited selection??? What
does that cost Sony??? It costs them nothing!

this is all arround bad for consumers and good for Sony... :(

[ Reply to This | # ]

You would have to be daft to agree to this
Authored by: Anonymous on Friday, December 30 2005 @ 08:17 AM EST
"[b]efore manufacturing and issuing any CDs with content protection
software at any time until 2008"

So its OK to do this sort of thing again in 2 years time?

Why would this be? Is spyware to be made legal by then? Do Sony BMG own the US
Congress? Note that 2007 is a presidential election year.


"Defendants have committed that the do not and will not collect, aggregate
or retain certain personal information"

Please note 'certain'. Please identify with specificity what you mean by
'certain.' In many jurisidctions collection of personal information without
explicit consent is an offense. By agreeign to this you give Sony the implicit
right to collect personal information.


"[w]ill be allowed to resell the CDs, and will not lose their licenses for
the software if they file for bankruptcy protection or are declared

Spare me. Sony have no rights over resale of the CDs. The sofware licence - the
buyers in general had no idea that the SW was on the CD. It is highly probbale
that they would never have bought the CD in the first place if they were aware
of the SW. I cant imagine anyone wanting to go out and buy a licence for this SW
in the first place.

In English I dump a virus on your hard drive. I then sue you for running the
virus without a licence. And the plantiffs' lawyers argeed to this???


"Defendants waive their rights to be indemnified by users of the XCP or
MediaMax software for harm arising from their use of the software."

So I get a few dollars from Sony. It then costs me US$100-200 to get the spyware
off my machine. I did not install the SW knowingly on my machine. Why should I
have to pay for its removal?



[ Reply to This | # ]

A Proposed Settlement in NY Class Action Sony Litigation
Authored by: blacklight on Friday, December 30 2005 @ 08:24 AM EST
If I were Sony BMG, I would be shopping for a class action lawsuit whose
sweetheart terms would effectively preclude further lawsuits.

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 | # ]

Seven dollars and fifty cents??????
Authored by: pfusco on Friday, December 30 2005 @ 09:40 AM EST
Correct me if Im wrong but the cost of those cd's to the cunsumer are
signifigantly (sp chk) higher than that!!

only the soul matters in the end

[ Reply to This | # ]

Authored by: Anonymous on Friday, December 30 2005 @ 10:49 AM EST
An aquantance of mine is blind and uses screen reader, etc. software that costs
approximately $500. The license and security features of said software allows
for only 3 re-installs without going through a bunch of red tape.

He used a CD with XCF on it which promptly broke his accessablility software.
After he removed the XCF, he had to re-install the accessablility software. He
had already used up his 3 installs. The accessablility software vendor did not
allow him another install so, in order to continue using his computer, he paid
$500 for another license.

And now he gets $7.50 and a few free songs from Sony?

This settlement is absolutely stupid! Here we have the perfect setup to kick
DRM back down THEIR throats and the lawyers settle for pocket change. Amazing.

[ Reply to This | # ]

Another in a long list of sweetheart "settlements"
Authored by: joef on Friday, December 30 2005 @ 10:58 AM EST
So many class action suits get settled by negotiation, Look at some of the typical terms:
  • The class is large, say X members, but the per-member damage is small, say Y.
  • But the product XY is a substantial sum.
  • Plaintiff counsel negotiates a settlement based on XY, perhaps with even a punitive add-on that bumps it up a bit,
  • Counsel's fee is based upon a percentage of that XY+ amount,
  • Settlement is announced, with the standard option of withdrawing from the class (opt-out),
  • The mechanism for claiming a share of the settlement is somewhat obfuscated and cumbersome, and in any event, the damage Y is peanuts to the individual; furthermore, the cost of the offered compensation to the defendant is small, perhaps a discount on a future purchase that can only be taken against the "suggested list price" of the item,
  • Only a small fraction of the class X ends up going through all the wickets.
Plaintiff Counsel is very happy; she got a quick settlement without a lot of work. Defendant is happy; he got out of the whole problem quickly and at modest cost compared to the potential liability. The settlement was accepted with prejudice: case closed. The airlines got out of it with free upgrades (space available) to their frequent flyers. GM got out of it with discount coupons that look paltry compared to recent sales promotion discounts.

[ Reply to This | # ]

A Proposed Settlement in NY Class Action Sony Litigation
Authored by: Anonymous on Friday, December 30 2005 @ 11:36 AM EST
Here's Ed Foster's take on the settlement, which mirrors what I felt when I first heard about it.

"Unsettled by the Sony Settlement"

[ Reply to This | # ]

Don't include me -- A Proposed Settlement in NY Class Action Sony Litigation
Authored by: Anonymous on Friday, December 30 2005 @ 02:42 PM EST
To the best of my knowledge, I have not suffered from the Sony fiasco. However
had I a compter that was damaged by the improper software being installed on my
computer, I would be tempted to opt out of the class action, have my machine
cleaned by a professional, and sue Sony in small claims court for the bill.
From all indicationss I've heard, the cleanup measures provided by Sony
introduced more problems than were solved. Interestingly enough I probably
would not want a replacement disk, I would simply mark it for not for use on a

[ Reply to This | # ]

Sony execs should do jail time
Authored by: Anonymous on Friday, December 30 2005 @ 04:35 PM EST
Kids who write viruses and spyware go to jail.

How is this different?

Because Sony execs have got political connections, maybe?

[ Reply to This | # ]

Ignoring known security bugs
Authored by: YetAnotherSteve on Friday, December 30 2005 @ 07:38 PM EST

Some of the "settlement agreement" (PJ linked to it in the original article) is even worse than the "proposed settlement". This is section IV.B.3.f (page 28):

If SONY BMG manufactures any CDs with any Content Protection Software during the Injunctive Period, it will, before doing so:


f) Provide any Content Protection Software to at least one qualified, independent third party, and obtain an opinion from that third party that the installation and use of the software would create no Security Vulnerabilities that would be considered Confirmed Security Vulnerabilities.

Which I read as saying that they may ignore any "Security Vulnerability" if their expert thinks it isn't serious. They define a "Security Vulnerability" to be a weakness "allowing an attacker to violate the integrity, confidentiality, access control, availability, consistency or audit mechanism of the system or the data and applications it hosts". I'm not sure if the wording allows them to ask for a second opinion if the first expert says that it is serious.

I know that software normally ships with some minor bugs which are known about and accepted by the development team, but I wouldn't class anything that meets their definition of a "Security Vulnerability" as minor. I'd be really worried if anyone considered shipping such software to be better than shipping a normal audio CD.

On top of that, IV.A states that the parties expect everything in section IV to be forced on to Sony BMG anyway by the State Attorney Generals' cases. So there's no behaviour injunction there that wouldn't happen without this class action.


If I weren't drawing direct inferences from the material I'm quoting, I'd be worried about a libel case for the slur that I've just cast at the developers' QA standards.

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A Proposed Settlement in NY Class Action Sony Litigation
Authored by: Anonymous on Monday, January 02 2006 @ 05:52 AM EST
One issue with the proposed settlement is that there are no references to ANY
real verifiable examples of people who suffered cost/inconvenience by installing
Sony Rook-Kit.

The only verifiable example I know is Mark Russinovich (who discovered the
root-kit), perhaps Mark should be asked how much it cost him to remove the
root-kit and that could be used as a real bench mark for compensation. (I am
somehow reasonably sure his answer could be several orders of magnitude more
than $7.50.)

Also aren't damages awarded in a "class actions" meant to be
significant so they are seen as warning to others in the industry.

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A Proposed Settlement in NY Class Action Sony Litigation
Authored by: Anonymous on Tuesday, January 03 2006 @ 09:03 AM EST
so... if Sony were in the art business...

Customer: This sculpture you sold me has spyware inside of it. I want the
spyware removed so I can display this piece in my living room. I do not like
having a sculpture that 'phones home' to Sony everytime I look at it.

Sony: Phone home? I don't know what you are talking about...

<several high profile news stories later>

Customer: Now will you exchange this for a non-spyware equiped sculpture?

Sony: Well, according to the terms of the lawsuit we need only pay you half of
the cost of the sculpture and you can pick any of these 100 pictures of
sculptures as a replacment.

Customer: A picture of a sculpture?

Sony: Well, you might copy an original.

Customer: What about the surveilance technician I had to hire to find the
spyware in the sculpture?

Sony: Oh, we are not liable for that, you did that on your own.

Customer: See if I ever buy from you again!

<months later>

Sony Exec 1: Sculpture sales are way down! It must be piracy!

Sony Exec 2: Yes, put the spyware back in the sculptures so we can confirm it to
be true!

Sony Exec 3: Maybe if we stopped selling scupltures of feces we might be able to
sell more?

('course we all know Sony Exec 3 is imaginary)

[ Reply to This | # ]

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