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Sony's antipiracy may end up on antivirus hit lists
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Now the lawyers are taking aim, too. Robert Green, a partner at the San Francisco firm of Green Welling, says he's readying a class action lawsuit against Sony.
"We're still investigating the case and talking to different people about what happened to them," Green said on Friday. He plans to argue that under California law, if you buy a copy-protected CD from a music store, you should be informed that a spyware-like utility will be implanted on your hard drive.
The fuss last week began when Mark Russinovich, a Windows programmer and author, posted a description of how he traced some mysterious processes and hidden files on his computer back to SonyBMG's "Get Right with the Man" CD. It turned out that they were part of Sony's digital rights management technology designed to thwart illicit copying.
Sony has backpedaled a little, saying that the hidden files can be uncloaked. But customers still have to beg for help if they want to uninstall the software.
Still, it may be too late for the entertainment giant to fend off the plaintiff's bar. One recent court case in Illinois, Soleto v. DirectRevenue, sets a nonbinding precedent that lawyers expect to be invoked against Sony.
In that case, DirectRevenue was sued for installing spyware on Windows computers without obtaining proper authorization from a user. U.S. District Judge Robert Gettleman said the company could be sued on trespass, Illinois consumer fraud, negligence, and computer tampering grounds.
Then there's a California spyware-related law that says a company may not "induce" anyone to "install a software component" by claiming installation is necessary to "open, view or play a particular type of content."
Translation: Sony could be in double trouble. Its Windows software is hardly necessary to play music--the disc works just fine on a Macintosh or in an old-fashioned CD player.
Meanwhile, dozens of other states are considering similar laws, each with slightly different wording. So is Congress.
The blunderbuss of the DMCA
In a bizarre twist, though, it's not only Sony that could be facing a legal migraine. So could anyone who tries to rid their computer of Sony's hidden anticopying program.
That's because of Section 1201 of the Digital Millennium Copyright Act, which bans the "circumvention" of anticopying technology.
"I think it's pretty clear that circumventing Sony's controls violates the DMCA," says Tim Wu, a Columbia University professor who teaches copyright law. (Violations of the DMCA include civil fines, injunctions, computer confiscations, and even criminal penalties.)
Wu noted that one possible reprieve might come from last year's ruling from a federal appeals court in a case dealing with garage door openers--it said no copyright violations were taking place, so no DMCA violation occurred. Then again, another federal appeals court objected to bypassing anticopying technology used in DVDs, which is probably a closer analogy.
A bizarre result
If your head isn't spinning by now, it should be. It's a wacky result when both Sony and its hapless customers could be embroiled in legal hot water at the same time.
These citations to state laws, federal statutes and common law torts above should demonstrate an obvious point: The American legal system is, all too often, used as a weapon against businesses or individuals who can't hope to comply with every regulation on the books. Entrepreneurs write checks to law firms instead of developing products. Guilt and innocence turn too often on technicalities rather than whether an action was inherently right or wrong.
Why? As Manhattan Institute fellow Walter Olson documents on OverLawyered.com, our legal system is set up to encourage lawsuits. They're easy to file and difficult to dismiss. Plus, politicians receive attention by enacting new laws, not by repealing them. No wonder the Federal Register was growing by between 55,000 and 70,000 pages annually even by the first Bush presidency.
In one 1999 class action lawsuit ostensibly filed on behalf of flight attendants against tobacco companies, for instance, the attendants received nothing in the settlement. But the lawyers pocketed $49 million. After Microsoft's federal antitrust suit was over, dozens of class action suits sprouted, yielding negligible benefits for consumers--but fat paychecks for the lawyers involved.
Of course, malicious behavior that harms someone else should be unlawful. But whatever happened to the concept of a few basic rules--don't steal, don't commit fraud--rather than thousands of pages of bureaucratelia that few of us can hope to understand, let alone follow?
Biography
Declan McCullagh is CNET News.com's chief political correspondent. He spent more than a decade in Washington, D.C., chronicling the busy intersection between technology and politics. Previously, he was the Washington bureau chief for Wired News, and a reporter for Time.com, Time magazine and HotWired. McCullagh has taught journalism at American University and been an adjunct professor at Case Western University.
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When you say yes to installing software (on any platform), you assume the vendor will just put on what they say they are installing. What was the last piece of software you put on your Mac that needed the Root password? Do you trust them not to install a Root kit? They can. That is the point.
In this case its a good idea to rally behind the Windows users as it does effect us all.
I think this is a good thing to happen. Nothing bad can come from SOny shooting itself in the foot.
If only the people that get ripped off by the record companies(aka artists) will stand up to this sort of thing and move away. Of course, many of them with out massive marketing to the MTV viewing sheep would still be in the garage, which is another bonus. I find it hard to believe that so many recording artists get ripped off by the record companies and they rarely complain. The bands and singers pay for nearly everything, including promotion, while the record companies get the majority of the profits.
The internet should be used more wisely. Truly good artists could be able to get their music out and totaly circumvent the decaying record companies.
Record companies could also help themselves, offer high quality, uncompressed music for $1 a song and no DRM in sight. Not only would it help in positive relations for once, it would help sagging profits, and it would stop the practice of putting one or two decent songs on a CD of 10-12 songs. Of course, bands that can't come up with more then 1 decent song every few years will be hurt, and that is how it should be.
Money, Money, Money, Money, Money ...
I run no risk of picking up this completely unethical piece of malware, spyware...whatever.
But say I did. Say I want to reformat my computer which I like to do at least once a year. Am I going to jail for circumventing DRM copyright crap?
This will go nowhere. One cannot prevent a computer user from reformatting or repairing their system...yet.
Like hack code that kills your console to make you buy another.
It takes time: you have to call them, wait for them to answer, follow their instructions...
Maost computer users are not proficient in working with system internals, including just using Windows explorer to go into system folders to remove files. Many only know how to turn on their computer and double-click the icons of the programs they use. Some might make mistakes like removing a similarly named file (or registry entry???)
Some users will have to pay for professional help to follow Sony's instructions. Some users will damage their own system or data in the process: statisticaly it's a certainty that a certain percentage of the users would make such mistakes.
Some users will lose the ability to use their computer during the time it takes to recover their system. This would cost them money, or at least is worth money in the sense that income is lost.
Sony should pay for all these costs. Even if we agree that it is OK that Sony and others use such sleazy tactics, it still doesn't mean that they should not bear the direct and indirect costs involved in it. Certainly the users should not pay for this. It is not the users' rights that are protected here. Whoever is protecting their "right" here should bear the costs involved in the process.
Then figure that there is all kind of commercial crap preinstalled by the OS that needs to be culled after an OS install. Not hard to imagine a spyware hiding in there. Mattel Toys was caught some time ago with a spyware (DSSAgent)lurking in a learn to read program they offered for children.
<a class="jive-link-external" href="http://www.salon.com/tech/col/garf/2000/06/15/brodcast/index.html" target="_newWindow">http://www.salon.com/tech/col/garf/2000/06/15/brodcast/index.html</a>
Our society has become so "permissive", that our conscience no longer plays a part in detemining right from wrong!
P.S. Yes, spyware ALWAYS causes the computer in question to be left vulnerable to the outside world more-so than before any spyware is downloaded (via site, CD, or other spyware).
And never forget that there's a very wealthy and powerful class of professionals with a vested interest in this legal confusion and conflict - remember the old saying: "if there is one lawyer in a town, he drives an old Ford; if there are two, they both drive new Lincolns"...