Sony DRM Installed Even When EULA Declined 433
HikingStick writes "News.com is reporting that the Texas attorney general is expanding the allegations against Sony. It seems the software would install even if users declined the EULA. From the article: 'The Texas attorney general said on Wednesday that he added a new claim to a lawsuit charging Sony BMG Music Entertainment with violating the state's laws on deceptive trade practices by hiding 'spyware' on its compact discs ... The new charges brought by Abbott contend that MediaMax software used by Sony BMG to thwart illegal copying of music on CDs violated state laws because it was downloaded even if users rejected a license agreement.'"
Feds dropping the ball? (Score:5, Insightful)
It's only fair (Score:5, Insightful)
Re:Can anyone here see a problem? (Score:5, Insightful)
However, since one clicked Disagree/Decline, then they did not enter into any contract. Yet Sony went and installed software anyway. That is trespass and thus the state should be involved since it was illegal activity.
Re:Can anyone here see a problem? (Score:5, Insightful)
A contract is, by definition, a bilateral agreement. The EULA is a contract offer, and if it is declined, there is NO contract between Sony and the user. What that means is that Sony is forcing a unilateral agreement onto a user who does not have a contract with Sony. That's a criminal case, not a civil case.
Of course, I'm not a lawyer, so take my comment with a grain of salt. But that's my interpretation of it in a nutshell.
Re:Can anyone here see a problem? (Score:5, Insightful)
While I generally agree with your sentiments regarding pre-existing civil remedies, state Attorneys General routinely file "consumer-protection" type of law suits against big companies in order to spare the consumers from having to litigate matters that would otherwise be too costly.
While some have criticized over-active Attorneys General, like New York's Eliot Spitzer, for being too litigious, I think this type of action has its place. It's definitely better than the standard class-action suit where the lawyers are made rich and the class members get a coupon for $5 off their next purchase of the product they complained about in the first place. I don't think the "state lawyers" get rich in this type of case, although there are instances (like the tobacco litigation) where the states hired outside lawyers to litigate this stuff.
Law has always been complicated, believe it or not. Else, why have we had lawyers for so long? At least for the last couple of hundred years, we've actually had laws that are written down in codes and case books.
Not a Virus? (Score:5, Insightful)
FTA: "The creator of the copy-protection software, a British company called First 4 Internet, said the cloaking mechanism was not a risk. The company's team has worked regularly with big antivirus companies to ensure the safety of its software, and to make sure it is not picked up as a virus, he said."
First of all, I would like to know who these "big antivirus" companies are so I can stop using their product (assuming I might be). That or to make sure I never use or recommend them to others'.
We are in trouble when antivirus companies are in backroom negotiations with virus makers, I assume for profit, not to detect one virus in favor of another.
How can I trust they haven't negotiated other backroom deals with virus/spyware writers that let other viruses and spyware on my machine?
I want to know who these "anti" virus companies are!
Re:Can anyone here see a problem? (Score:3, Insightful)
Just for the record, I agree with the rest of your post. However, this isn't a mere violation of contract. You see, a contract was never made. In this case, the user refused to "sign" the "contract" (although I'm not really agreeing that a EULA is a valid contract...). Despite the fact that the user did not enter into a contract, Sony still "trespassed" on their system. Honestly, this case could be prosecuted in a myriad of ways in a criminal court. It could be considered trespassing, vandalism, espionage, deceptive trade practices, and several more outlandish violations of the law.
Well, that depends... (Score:5, Insightful)
On the other hand, if it were a wealthy multinational corporation who did so, the answer would be... perhaps we can find a discrete settlement to avoid any discomfort to our most valued citizens.
Corporate Anarchy (Score:5, Insightful)
Re:EULAs are stupid... (Score:1, Insightful)
Re:Feds dropping the ball? (Score:3, Insightful)
Re:Indie Music (Score:0, Insightful)
come on now....
It's even funnier than this... (Score:5, Insightful)
It turns out that there were worms in the catfood and now your cat is incredibly sick. Amazingly, the attorneys did this on purpose. If you take her to the vet, it will cost you hundreds of dollars to cure her. You don't remember blinking, but they swear you did.
The government has sent an angry letter to the catfood guys, but no one looks like they have any intention of paying your vet bill - or even sending your cat a get well card.
In response to the government, the catfood people announce they've "solved" the problem, because they've agreed to temporarily stop shipping worms in catfood. However, they're still shipping spiders, ants, and leeches - and they have "big plans" to expand the practice.
You don't know exactly how long your cat has left to live, but after watching all this, you get the feeling its days are numbered one way or another.
Re:Can anyone here see a problem? (Score:4, Insightful)
The State (in America) is us. It's We The People.
The way I see it, Sony breached a contract. This is easily resolved in court, and anyone who had their contract breached by Sony should go ahead and file an independent lawsuit (not a class action lawsuit). You can hire a local attorney and move forward.
That worked so well with the Linux geeks who tried to return Windows per the OEM EULA.
Oh, wait. No, it didn't.
But it's worse than that. Let's assume you manage to design a low-cost way for individuals to sue a large corporation, how many people are actually going to sue Sony? Not many. So Sony will just eat the cost of a few lawsuits, and continue as usual.
Do you really expect people to sue over every little transgression? Do you have the time to be diligent over every EULA, every "implied" contract in your everyday life? Odds are you don't. That's what the State is for (in the US), to look after our collective interests. Doesn't always work out that way, but it does work out better than without the State. There are also Class Action suits, which are not necessarily brought on by a State, but are backed by the State, so the effect(collective power, backed by the State) is the same.
Who is with me in asking for an amendment limiting all laws to one topic, 200 words or less, and only can pass with a signature of the President and a signature of a random person with a 3rd grade education who agrees that even they understand the law?
Not I. Your post is more than 200 words. Do you think it's complex enough to cover questions like automobile operation? Building codes?
Laws can't be as simple as "thou shalt not kill", because sometimes thou shall kill. And sometimes different types of killing are met with differing levels of "shalt not".
The law is a mockery of justice today, and there is ZERO way for any individual or small group to win in the long run.
Under the current Republican House, Senate, and Presidency, that's become ever more true. They are systematically removing the rights of the people, and empowering the corporation. It's disgusting.
FYI, for other anarchocapitalists out there, my solution is true moderated arbitration mechanisms in a free market, not the law or the courts.
There is no such thing as the Free Market. Laws and Courts are required to prevent Capitalism from reverting to the Law of the Jungle.
Re:Criminal Tresspass (Score:1, Insightful)
To amend your analogy... After youve already invited someone into your house, just because you say you don't want to buy their cookies doesnt mean they have to take the boxes when they leave. They can leave the cookies and walk out, and they are yours to eat or not as you please with no obligations.
Re:"Cancel" != "Decline EULA" (Score:5, Insightful)
Re:Can anyone here see a problem? (Score:5, Insightful)
Might makes right. A cracker who sends trojans or rootkits may actually see fines or jailtime. A corporation who does the same thing is just protecting its IP or, if suitably backed into a corner, admit they made a mistake and continue doing the same crap with a different name. You'll never see a single indictment for wrongdoing at a large company for this.
Re:Sony and DMCA - Don't forget (Score:4, Insightful)
And Performance. Don't forget this thing can end up running continuously consumung both memory and cpu cycles.
Re:Criminal Tresspass (Score:5, Insightful)
When I put the CD in the drive, I wanted to play some music, not install some software. It's YOUR analogy that's flawed.
How about this:
I run a bar and decide to get some live music, so I call up a group of musicians. A popular and very well known band, of course, I don't want to drive my patrons out. They tell me "sure, we'll come and play, just give us some money." So I send them a payment, and the day of the performance, they show up with a 50 page contract. "Just sign this and we'll be set". I look over it, and I see among it's provisions that they're going to firebomb the stage at the end of the show. I give them the contract back and tell them no.
Then they firebomb the stage.
Re:Feds dropping the ball? (Score:4, Insightful)
Sony,BMG,RIAA,MPAA big corperations all bought and paid for that shiny government we have here.
What you are asking is the same as asking an attack dog that is trying to eat your face to attack it's owner.
It is not going to happen.
installing after decline != illegal (Score:3, Insightful)
NOW, one standard subset of the rights you surrender when agreeing with the EULA basically says you agree that the software is "as-is", "not fit for any particular purpose", etc. Basically you agree not to sue the manufacturer for any ill-effects caused by the software, even if the effects are known or the manufacturer was grossly neglegent in their design. Oftentimes these provisions are actually illegal or legally unenforceable though, but they basically stuff anything in there they can think of that makes them feel warm and fuzzy that they are bulletproof.
So this does not represent an illegal act, but rather it opens up the software distributor to numerous legal liabilities that the EULA would otherwise have afforded them some protection from. Given the extremely nasty nature of the software it installs, this should make a perfect target for lawsuits, since by installing the software without getting an agreement to the EULA, they have essentially taken off all their legal armor and stand naked before the courts.
I don't know if the installer basically behaves the same for the agree button as it does for the disagree, but from the article it rather souds that way. That being the case, it would be extremely difficult for Sony to prove that anyone agreed to the EULA. (normally the fact that the software got installed indicates you agreed, but not in this case) That means anyone that ran the installer has an opportunity to file a lawsuit based on harm received from their software, since Sony has no proof you agreed to their terms. (agreed to not sue them)
Re:Can anyone here see a problem? (Score:3, Insightful)
Sony violated the laws of Texas. In fact they violate the law of reaon. There is no cause for every person in texas who was stupid and purchased a CD to sue Sony. That would make more money for the lawyers than anyone else. It is simpler for the State to bitch slap the idiots and tell them to behave. This way, the only way the lawyers make money is if Sony tries to pretend no laws were violated.
No matter how simple the laws are, the evil doers will get the bad lawyers to figure own how to meet the letter of the law, but not the spirit, and the good lawyers will defend us against those that prize currency over common decency.
Re:Can anyone here see a problem? (Score:1, Insightful)
Re:"Cancel" != "Decline EULA" (Score:3, Insightful)
More Like Senior Scapegoat (Score:3, Insightful)
Re:Can anyone here see a problem? (Score:5, Insightful)
It's a contract in the same way that ordering food in a restaurant is a verbal contract to exchange money for food.
Reasons why EULAs may be unenforcable contracts, however, include:
- They tend to be unilateral in nature.
- They attempt to impose restrictions AFTER the point of sale contract. (This is a legal no-no.)
- They are forced upon the customer, as the he has already paid for the software.
- There's no way to prove that the user actually accepted the license. (That's why the GPL has a fall-through clause that uses regular copyright law for protection.)
- It cannot be shown that customers actually understand the license before accepting it, meaning that the terms may be unenforcable.
Basically, there are a lot of problems with EULAs. The idea that they're not contracts, however, is not one of them.
Re:Corporate Anarchy (Score:3, Insightful)
The corporate veil needs to end. If a human made the decision to force software to install on my computer then that human needs to be held personally liable for it.
Until people are held liable for their actions, evil people will continue to act freely.
I've asked this before and I'll ask this again: (Score:3, Insightful)
Re:Corporate Anarchy (Score:3, Insightful)
Yes. But the problem is that the human doing the evil is rarely held accountable for it because it's done under the cloak of the corporation. In a large corporation it's very easy to cover up who made what decisions. India's case against Union Carbide went nowhere. Though they issued an arrest warrant for its CEO Warren Anderson and unsuccessfully tried to extradite him, I wonder if they could prove that he had any knowledge of what was going on in Bhopal? In the meantime, Dow Chemical purchased Union Carbide and to this day fights [wsws.org] over the matter of taking responsibility for the incident. Putting away the CEOs of Enron, Adelphia, et al is the exception, not the rule, and that's only because investors lost an assload of cash. But the deaths of 14,000 second world brown people. Who gives a crap?
Re:Can anyone here see a problem? (Score:3, Insightful)
It's the equivalent of making that 'super-fine print' illegal. The EULA isn't presented until the financial transaction has been completed. Therefore, it's null and void. The user has the right to use the software, having paid his money at the store for it. The software company isn't allowed to change the deal after the fact.
Re:Can anyone here see a problem? (Score:5, Insightful)
The key here is that you were sold music, not software. Software is not a feature of the music and was bundled without disclosure. This in itself may be illegal in some states. Now add to that fact that the software installs itself even after you decline to a contract offer for the software, and you have a recipe for legal disaster.
The rest of your comment is irrelevant. The software is not a feature of the music. Period.
Re:Criminal Tresspass (Score:3, Insightful)
Great way to solve the problem, Sony.
If I agree then I have not agreed (Score:3, Insightful)
Re:Criminal Tresspass (Score:5, Insightful)
I follow you this far. To my reading of it, you are correct. But there's another aspect to this many (perhaps even Sony's Lawyers) have missed.
One of the more common things which one would agree to when accepting a EULA is an agreement to assume any subsequent liability, indemnifying the other party (Sony, in this case) against liability for flaws in the product, and such. The idea being (to choose a farsical example) that before you install the Sony rootkit onto a CDROM-equipped heart/lung machine, you must agree to accept full responsibility for doing so. Sony has no way of knowing, beforehand, that you are planning to install it onto a heart/lung machine, and probably did not perform anything in the way of due dilligence to ensure it wouldn't bluescreen heart/lung machines accidentially. (How could they?) So instead they should issue a generic warning that there are certain circumstances where installing this software might not be a good idea, that it's your responsibility to ensure that installing the software (playing the music) won't have any bad consequences, and that if you choose to install it there anyway, they won't be responsible for anything bad that might happen. That's what the EULA is for; to protect them.
But apparently, Sony is installing software without first securing that all important get-out-of-liability-free EULA card first. I'm sure sopme Sony lawyers are having nightmares about this.
While it's unlikely anyone tried to install a Sony music CD onto a heart/lung machine, the liability is not limited to those circumstances.
If a doctor tried to play music on his laptop, and later a medical liability case hinges around how bad data got into a patients medical report, Sony could become a party to the lawsuit, because a reasonable claim could be made that the Sony rootkit allowed some hacker to make changes to the patient medical report (and cover his tracks), and the burden of proof might well be on Sony to prove a) that such an intrusion did not take place, and b) that the doctor did in-fact accept the EULA releiving Sony of responsibility. That's going to be a tough burder to meet.
Of course, I haven't read the EULA itself, so I'm just guessing at what it insulates Sony against.
I'd be very surprised if the "install anyway" aspect of this was approved by a lawyer; if it was, he'll probably lose his job. If it wasn't approved by a lawyer, the one who failed to get such approval may be losing their job. But one thing Sony really can't do (IMHO) is just call it a mistake, because that would be admitting negligence without even a fight.
This one is going to be interesting to follow. It's almost one of those cases where Sony might hope for a quick class-action settlement just so they can fall-back to a "we already settled all of our obligations under the class action lawsuit; your wrongful death lawsuit is moot, because we already sent you a "coupon for a free CD".
Would this not be RICO-worthy, then? (Score:3, Insightful)
Re:Criminal Tresspass (Score:4, Insightful)
If someone purchased a Sony rootkit music CD, and
If they put it into their computer, and
if they declined the EULA, and
if they did all that before they learned about the rootkit, then Sony just handed them a get-out-of-liability-free card for anything that happens on that computer from that point forward.
Spam gets sent to California? Sony pays the $10,000 fine.
Caught hacking into the CIA? Sony gets the free trip to gitmo.
Downloading kiddee porn? Not me, Mom. It's Sony's fault!
Let's take it one step farther...
Uploading Sony music onto P2P? Why don't you go cease-and-desist-yourself.
Now you understand just how far Sony has screwed this one up.
The RIAA will rush to defend Sony (Score:3, Insightful)
Because anyone who would "decline" a EULA is obviously a PIRATE and thus, Sony was justified in pushing their malware through anyway
It's an argument only a SCO lawyer could make, but the RIAA seems full of them
Re:Criminal Tresspass (Score:3, Insightful)
"Illegal Instruction: 0xffffffff" blah blah you know the rest
I told my wife about it. She said "Why the hell are they running windows in here? This stuff is important!"
I love my wife. :)