California Class Action Suit Sony Over Rootkit DRM

carre4 writes "Lawyers in California have filed a class-action lawsuit against Sony and a second one may be filed today in New York. The lawsuit was filed Nov. 1 in Superior Court for the County of Los Angeles by Vernon, CA attorney Alan Himmelfarb. It asks the court to prevent Sony from selling additional CDs protected by the anti-piracy software, and seeks monetary damages for California consumers who purchased them. The suit alleges that Sony's software violates at least three California statutes, including the "Consumer Legal Remedies Act," which governs unfair and/or deceptive trade acts; and the "Consumer Protection against Computer Spyware Act," which prohibits -- among other things -- software that takes control over the user's computer or misrepresents the user's ability or right to uninstall the program. The suit also alleges that Sony's actions violate the California Unfair Competition law, which allows public prosecutors and private citizens to file lawsuits to protect businesses and consumers from unfair business practices. EFF has released a list of rootkit affected CD's and Slashdot user xtracto also has a list."

I understand the first two...

But how did Sony's actions prevent people from suing? Was there a clause in the EULA that prohibited it? Since they're getting their asses sued off anyway, can't the judge throw this one right out?

Re:I understand the first two...

From the EULA :

NO SONY BMG PARTY SHALL BE LIABLE FOR ANY LOSS OR DAMAGE, EITHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHERWISE, ARISING OUT OF THE BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, TERM OR CONDITION, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY MISREPRESENTATION, FAILURE OF ANY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE OR ANY OTHER LEGAL THEORY ARISING OUT OF, OR RELATED TO, THIS EULA OR YOUR USE OF ANY OF THE LICENSED MATERIALS (SUCH DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF USE OF THE PRODUCT OR ANY ASSOCIATED EQUIPMENT, DOWN TIME AND USER'S TIME), EVEN IF THE SONY BMG PARTY CONCERNED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, THE ENTIRE LIABILITY OF THE SONY BMG PARTIES, COLLECTIVELY, UNDER THE PROVISIONS OF THIS EULA SHALL BE LIMITED TO FIVE US DOLLARS (US $5.00). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CERTAIN INSTANCES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. THIS ARTICLE WILL NOT APPLY ONLY WHEN AND TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY REQUIRES LIABILITY DESPITE THE FOREGOING DISCLAIMER, EXCLUSION AND LIMITATION.

And this little bit too :
Article 10. GOVERNING LAW AND WAIVER OF TRIAL BY JURY 1. THE VALIDITY, INTERPRETATION AND LEGAL EFFECT OF THIS EULA SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS ENTERED INTO AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW PRINCIPLES UNDER NEW YORK LAW). THE NEW YORK COURTS (STATE AND FEDERAL), SHALL HAVE SOLE JURISDICTION OF ANY CONTROVERSIES REGARDING THIS AGREEMENT; ANY ACTION OR OTHER PROCEEDING WHICH INVOLVES SUCH A CONTROVERSY SHALL BE BROUGHT IN THOSE COURTS IN NEW YORK COUNTY AND NOT ELSEWHERE. THE PARTIES WAIVE ANY AND ALL OBJECTIONS TO VENUE IN THOSE COURTS AND HEREBY SUBMIT TO THE JURISDICTION OF THOSE COURTS. 2. YOU HEREBY WAIVE ALL RIGHTS AND/OR ENTITLEMENT TO TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE THAT ARISES OUT OF OR RELATES IN ANY WAY TO THIS EULA OR THE SOFTWARE.

So yeah, they tried to get out of their corperate liabilities.

Re:I understand the first two...

Yeah, but companies always put that in. Ever go to the hospital and sign a liability waiver saying you won't sue them if the doctor makes a mistake? Malpractice suits still happen (and are won) even though the patient signed that waiver.

I believe the term is "exculpatory", and the way my legal environment professor explained it was this: "If clauses like that worked, we'd all be driving around with signs on the front of our cars that say, 'Not responsible if I hit you'." (IANAL, of course.)

Re:I understand the first two...

can't the judge throw this one right out?

He probably could throw it out but I hope the opposite happens. Toss a big fine and bad publicity to Sony for this. DRM went too far with a root kit and two wrongs don't make a right. Sony is going to have to learn this. But the worst may yet come for Sony, I for one will no longer buy Sony products.

And of all things, to remove the root kit you have to run an Active-X control from an untrusted site. Just what we in the security business tell people for good reason not to do.

So I support dragging Sony through the mud on this.

"Nothing for you to see here. Please move along."

bleh.

Anyway, It's good to see this happening. It's important to make sure that the major labels realise that while DRM is legal, there are limits to what people will tolerate - and damaging peoples machines is not something that people are going to tolerate.

Heck, with luck they might even water down Blu-Ray as a result. I can dream :)

Re:"Nothing for you to see here. Please move along

t's important to make sure that the major labels realise that while DRM is legal, there are limits to what people will tolerate - and damaging peoples machines is not something that people are going to tolerate.

It's not simply a question of tolerance or not; some DRM may be "legal", but (IANAL) installing a root-kit on someone's machine without notification or permission almost certainly isn't. If they get away with this, it'll be because they have better lawyers, not because by any reasonable judgement it is "legal".

Of course, I hope it kicks up a stink for Sony too, but that's beside the point.

Great, yet another reason ...

not to buy CDs. Like I needed more reasons. They are already too expensive and they force me to buy tracks I don't want just to get the 1 or 2 I want. I know Sony *thinks* they are *adding value* which will incent me to buy CDs, but obviously they miscalculated.

If only someone would offer a digital download service with CD quality content.

no problem sony!

Just rename your emailed copy of the lawsuit to $sys$lawsuit.pdf and it will disappear!

The mp3's have no DRM

I used to buy a lot of music CDs. But after this wave of incompatible discs i just resorted to download mp3s as its sure that i can play them on whatever device i want.

By the way, here's another interesting tidbit...

Before this gets /.ed [eff.org], here's the text.
Quoth the EFF :
Now the Legalese Rootkit: Sony-BMG's EULA
November 09, 2005

If you thought XCP "rootkit" copy-protection on Sony-BMG CDs was bad, perhaps you'd better read the 3,000 word (!) end-user license agreement (aka "EULA") that comes with all these CDs.

First, a baseline. When you buy a regular CD, you own it. You do not "license" it. You own it outright. You're allowed to do anything with it you like, so long as you don't violate one of the exclusive rights reserved to the copyright owner. So you can play the CD at your next dinner party (copyright owners get no rights over private performances), you can loan it to a friend (thanks to the "first sale" doctrine), or make a copy for use on your iPod (thanks to "fair use"). Every use that falls outside the limited exclusive rights of the copyright owner belongs to you, the owner of the CD.

Now compare that baseline with the world according to the Sony-BMG EULA, which applies to any digital copies you make of the music on the CD:

1. If your house gets burgled, you have to delete all your music from your laptop when you get home. That's because the EULA says that your rights to any copies terminate as soon as you no longer possess the original CD.

2. You can't keep your music on any computers at work. The EULA only gives you the right to put copies on a "personal home computer system owned by you."

3. If you move out of the country, you have to delete all your music. The EULA specifically forbids "export" outside the country where you reside.

4. You must install any and all updates, or else lose the music on your computer. The EULA immediately terminates if you fail to install any update. No more holding out on those hobble-ware downgrades masquerading as updates.

5. Sony-BMG can install and use backdoors in the copy protection software or media player to "enforce their rights" against you, at any time, without notice. And Sony-BMG disclaims any liability if this "self help" crashes your computer, exposes you to security risks, or any other harm.

6. The EULA says Sony-BMG will never be liable to you for more than $5.00. That's right, no matter what happens, you can't even get back what you paid for the CD.

7. If you file for bankruptcy, you have to delete all the music on your computer. Seriously.

8. You have no right to transfer the music on your computer, even along with the original CD.

9. Forget about using the music as a soundtrack for your latest family photo slideshow, or mash-ups, or sampling. The EULA forbids changing, altering, or make derivative works from the music on your computer.

So this is what Sony-BMG thinks we should be allowed to do with the music on the CDs that we purchase from them? No word yet about whether Sony-BMG will be offering a "patch" for this legalese rootkit. I'm not holding my breath.
Posted by Fred von Lohmann at 12:24 PM | Permalink | Technorati

Endquote. It's interesting to see just how far Sony will go to alienate the tech-savvy user base. It's been a few years since I religiously started forbidding people to buy Sony products, because I wouldn't be assed to "fix my vaio, please" or to "take a look at my LCD screen, there are, like black dots and stuff on it", but my brother-in-law still got himself a Sony DAP.

The first thing I thought was, "Wow! The salesman actually managed to sell him something that isn't an iPod.", but come on. What's you /.er's take on this vast DRM-wing conspiracy?

Buying a new computer

I know that Sony's actions here will make me think twice about buying a Vaio. I'm getting ready to buy a new laptop, and Sony does have some decent ones out there. However, I have no way of knowing that they're not gonna install this crap on the machine at the factory. Well done Sony. The actions of one arm are negatively affecting sales of another...

More from Mark

Looks like Sony aren't making it easy to get rid of their rootkit [sysinternals.com].

Most Spyware has fewer hoops to jump through to uninstall it.

Serves them right

I'm not sure how Sony arrived at the decision to take over people's computers, but I can't see the morality of it. "People are stealing from us, so let's damage their property."

In meatspace, this would be called "vigilante justice," but I'm not sure that large corporations qualify for that label.

Re:Serves them right

and they aren't even apologetic about it. From this piece of news [arstechnica.com]-

Thomas Hesse, President of Sony BMG's global digital business division, showed up on NPR to try and sweep the entire thing under the rug.

"Most people, I think, don't even know what a rootkit is, so why should they care about it," he asked? "The software is designed to protect our CDs from unauthorized copying, ripping."

Pathetic

Now they done it.

You can piss off the consumers, the college kids, the geeks, the nerds, the haxx0rs, the artists, and even other people in the industry itself... but when you put that crap on a country CD, you just know some politician is going to buy it, and then you're screwed.

Misleadings, expansions, and lawsuits abound

Several things are important to point out:

First, right now it isn't "California" as a whole suing Sony. An attorney has filed a class action lawsuit, and California citizens (and the world as a whole) will benefit. It would be nice if the California Attorney General would lend the government's support in an amicus curiae brief, but in media-rich California that isn't likely to happen. The representatives of the people of California haven't really weighed in on the matter yet, sadly.

Second, a New York law firm will be next to join the bandwagon. Things are heating up faster than the article summary indicates

Third, all of these lawsuits are going to hit Sony *hard*, right in the wallet. Any financial benefit they might have gained from their DRM will be lost unless the lawyers involved immediately drop their cases.

Finally, Sony really doesn't have any solid defense against the charge that they violated the Consumer Protection Against Consumer Spyware Act, *unless* the act specifies that spyware can only be classified as such if it submits personally identifiable information back to the authors or a third party. I'm not too clear on that regard- anyone have information they can add on that count?

Aim at foot, pull trigger

From the article: "Sony's move is the latest effort by the entertainment companies to rely on controversial 'digital rights management' (DRM) technologies to reverse a steady drop in sales that the industry attributes in large part to piracy facilitated by online music and movie file-sharing networks like Kazaa and Limewire."

Yeah, because installing secretive, privacy-invading software on your computer is sure to stimulate CD sales.

And the uninstall process [sysinternals.com] is a privacy invasion too... you gotta fill out an online form, check your email for a URL to ANOTHER online form, then get the uninstaller. And while the uninstaller gets rid of the XCP2 Aurora [xcp-aurora.com], it simultaneously installs another DRM (MediaJam). Nice. Sony, how I love thee. You're so sinister.

Did you look at the list of "protected" CDs?

I mean, come on, Sony! Celine Dion? Neil Diamond? Ricky Martin??

If you were really serious about XCP as a means to prevent illicit copying, in order to protect your revenue, how about applying it to music that people would want to download?

DMCA defense?

I hope this goes to court and triggers Sony into mounting an DMCA based defense ("this is our copy protection system, and you don't mess with that shit even if does screw your PC"), then maybe people would get a better understanding of what a rotten law the DMCA actually is.

in similar news

Pestpatrol ad/spyware remover now detects and removes [zdnet.com] sony's DRM rootkit [ca.com] hats off to eTrust for that.

For Everything Else There's...

- DRM rootkit to stop piracy: $50,000,000
- Patch to water-down DRM rootkit: $5,000,000
- Top notch lawyers to sue pirates: $100,000,000
- Being sued by the only legitimate users you have: Priceless.

There are some thought processes money can't buy. For everything else there's MasterTard (tm).

I see stupid people.

And people wonder why I haven't bought a single CD in the past 5 years that didn't come from an independant artist. Sony will just have to lable me as a heathen devil commie mutant anti-social pirating slime bag since I now get all my music from other sources besides the traditional record industry. First it was a copy protection that killed my CD-Rom drive and my Car Stereo, now we have a major company turning into a @#$%ing hacker with intent on screwing up my system just to keep me from using thier music in THIER OWN MP3 PLAYER.

Yes, I love the fact that Sony wants to sell me a MP3 player and MP3 compatable CD and DVD players, but doesn't want me to actually USE the damn things to listen to thier music.

Go Figure.

The other stupid thing is the simple fact that there is no copy protection that has lasted more than 2 weeks before it was cracked, and at times in the most embarrasing way imaginable.

The one that cost millions to develop and was cracked using a $1.25 Sharpie marker jumps to mind.

Frankly I hope the music industry dies. I'm just so utterly sick to death about the whole goddamn thing I want it gone.

Phoenix

ALCEI claims rootkit is a virus

As linked through other Slashdot posts, the ALCEI (the Italian Electronic Frontiers organization) http://www.alcei.org/index.php/archives/105 [alcei.org], has a different tactic. They refer to F-Secure http://www.f-secure.com/v-descs/xcp_drm.shtml [f-secure.com] in order to sue Sony for propagating a virus named "XCP DRM Software".

This opens another plan of attack which I think will have more chance of succeeding (at least for public mind-share. I can't judge the legal value of the argument).

Re:Hell yeah!

"The man is sticking it to the man!"

Not that there's anything wrong with that. (=

Re:Hell yeah!

I can't believe how appropriate some of the song titles are:

Our Lady Peace, Healthy in Paranoid Times (Columbia)
Van Zant, Get Right with the Man (Columbia)
Switchfoot, Nothing is Sound (Columbia)
The Coral, The Invisible Invasion (Columbia)
Acceptance, Phantoms (Columbia)
Horace Silver Quintet, Silver's Blue (Epic Legacy)
Dexter Gordon, Manhattan Symphonie (Columbia Legacy)
The Bad Plus, Suspicious Activity (Columbia)

almost like they are an extra subliminal warning, given the extra Sony "Bonus" that awaits on the CD.