June 29, 2017

Open Thread: SonyBMG Lawsuit Settlement

SonyBMG has reportedly reached a settlement agreement in the class action lawsuits. Alex Eckelberry has posted the motion proposing the settlement, and a brief summary of its terms. The settlement must be approved by a court before taking effect.

We’re on holiday hiatus, so I won’t analyze the settlement now. Feel free to discuss it in the comments, though.

(Update: Discussion had already started in the comments on another post, starting here. It has moved over here now.)

(Update 2: Jim Tyre pointed out that what I had previously called the “settlement” was actually a motion asking the court to approve the settlement. I modified the text to reflect this, and I added a link to the actual settlement.)

Comments

  1. the zapkitty says:

    (relocated voluntarily from the
    “Computer Fraud and Abuse” thread 🙂 )

    Anonymous wrote:

    “The article seems to indicate that Sony-BMG will not be using any copy protection technology for the near future.”

    Gloom and doom aside… that’s not what the settlement read.

    First, this settlement pdf we are referencing is not the full agreement, but a summary.

    The full settlement details are in something supposed to be attached called “Ex. C to the affidavit of Elizabeth C. Pritzker in Support Of Plaintiffs’ Application For Preliminary Approval of Class Action Settlement”

    But the summary is clear enough:

    1. Introduction

    Defendants agree to:

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

    Sounds good… but is effectively nullified by later clauses.

    immediately recall all XCP CDs;

    (note the glaring lack of a Mediamax recall)

    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;

    The weasel wording.

    (skipping more text wherein Sony basically walks away from this with a slap on the wrist from a wet noodle and a very minor financial punishment. Also skip the footnotes where all the other U.S. class action suits have already lined their consumers up behind the eight ball should this go down)

    And said weasel wording becomes effective through the following:

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

    Impressive-sounding but the reality falls far short… actually, that really does /i> sound like the EFF, no? 😉

    “SONY BMG will not manufacture or distribute XCP CDs. SONY BMG also will not manufacture or distribute MediaMax 3.0 Cds or MediaMax 5.0 CDs”

    (snip stuff that essentially says that Sony will no longer try to overtly break the law when installing its malware… big surprise.)

    And there you have it. The EFF says no MediaMax, while knowing full well that MediaMax 6.0 is going to be weaseling into user PCs as soon as Sony can get it on their CDs.

    (Hmmm… in fact the only real change that these injunctions enforce will just make Mediamax (barely) acceptable for Windows Vista installation.)

    So: No Mediamax recall, Mediamax 6.0 on the way. Sony retains the ability to enforce its warped version of “consumer rights”, Sunncomm shills will still be screaming (wrongly) that not using their malware is illegal and you will burn in hell if you try… and to hell with fair use for that matter…

    So:

    No Mediamax recall, Mediamax 6.0 on the way. Sony retains the ability to enforce its peculiarly warped version of “consumer rights”, and we’ll even keepthe minor irritation of Sunncomm shills screaming (wrongly) that not using their malware is illegal and you will burn in hell if you try… and to hell with fair use for that matter…

    And back to Anonymous, who wrote:

    “Yesterday’s announcement made it look like they could just make some changes to MediaMax 5.0 to comply with the terms, release it as 5.1 or 6.0 and then business as usual.”

    That is EXACTLY what it does.

    ” The EFF statement indicates that they would only move forward with a more effective DRM.”

    And that’s what’s so disappointing about the EFF announcement. The implicit deception.

    So it seems that not only did the EFF volunteer to lose yet another important case… they couldn’t even wait to lose this one.

  2. Zap,
    Why are you so down on proposed settlement.

    Does it not cover the allegations?

    Eff seem to be in agreement as a consumer watchdog!

    Why is that not right?

  3. the zapkitty says:

    Jonathan wrote:

    “Zap,
    Why are you so down on proposed settlement.”

    Because, shill, it sells out the consumers afflicted with, and destined to be afflicted with, the Mediamax malware.

    ” Does it not cover the allegations?”

    What allegations? The facts behind the Mediamax malware are well verified. And to answer your question: the millions of Mediamax-infected Cds purported to be in the wild will be left out there, and Sony will have to pay jack shit in reparations as compared to the profits they reaped while deliberately distributing malware.

    ” Eff seem to be in agreement as a consumer watchdog!

    Dream on, shill. The EFF has never been anything nearly so plebian, so mundane, or so useful as a consumer watchdog organization.

    ” Why is that not right?”

    Because it’s wrong.

    Apparently the EFF was stung by the Register’s reminder that it has lost many important cases by pursuing pie-in-the-sky ideals, so it wanted to win this case in the worst way and proceeded to do just that.

    They “won”… in the worst possible way.

  4. I asked a simple question , You answer by name calling.
    Is your life that miserable that you have to stoop to that? Must be hell
    to live that life of misery!

  5. zapkitty

    One problem you have is that you are believing what they say on the Investorshub board. They will say anything there to make it look like everything is going fine. It is far from it. Some facts…..

    SunnComm and MediaMax Technology Corporation are heavily in debt, have not received any finance after months seeking it and have no assets other than bloated accounting valuations of certain items on their books. Their cash and other liquid assets are negligible and could not sustain them for even a few weeks without them selling more shares to survive.

    There is no MediaMax 5.1 or 6. They cannot afford to make the changes needed to comply with the agreement terms.

    They have no MediaMax for DVD product. That was just one of their many bogus PRs.

    They have no revenue coming in and probably will be bankrupt before they can develop a new revenue generating product or make MediaMax compliant with the agreement terms.

    Sony-BMG are rid of both Kevin Clement, who pushed MediaMax within Sony-BMG, and are now rid of the MediaMax product itself. THEY DO NOT WANT TO GO FORWARD WITH SUNNCOMM AND THE MEDIAMAX PRODUCT. SunnComm have proved a very costly and unreliable partner

    SunnComm & MediaMax Tech’s total revenue for 2004 was $106K and for 2005 will be approx $150K. That didn’t even pay the salaries of 2 of their programmers, never mind their 20 or so staff. They currently and for the forseeable future have NO revenue coming in.

    They lost a lawsuit to BTEK and owe them over $600K (see Judgement at end of this link):

    http://www.superiorcourt.maricopa.gov/docket/civil/caseInfo.asp?caseNumber=CV2002-011816

    BTEK have a lien over SunnComm’s assets until the awarded amount is satisfied:

    http://www.ragingbull.lycos.com/mboard/boards.cgi?board=SCMI&read=14170

    This line of the agreement would indicate to me that there are detrimental financial implications to SunnComm if the terms are agreed to:

    “This provision allows SunnComm and F4I, and these defendants alone, to review the terms of the settlement with their respective insurance carriers, which they were unable to do during the December holidays, while enabling the parties to move forward with the preliminary approval process.”

    I would think they will throw in the towel by end of January.

  6. Would acceptance of the agreement terms by Sony be seen somewhat as an “admission of guilt” in relation to the other lawsuits. One in particular is seeking $100K per CD damages. Could be very costly.

  7. The EFF used to say they would not support any DRM at all even if it where on the terms that many Services use that use Windows DRM the de-facto open DRM standard .The EFF have realised they wont get anywhere supporting a entranched hardline position .

    That usually means that allow you to burn a given playlist 7 times to CD ,allow you store music on 3 computers at a time (and try to have systems to revoke machines if needed by the consumer),transfer music an unlimited amount of times to 3 portable devices that are Windows DRM compliant.

    This is sufficient for the average user and they never encounter DRM warnings but some may due to bugs in the clients.

    A open cross platform DRM framework like that proposed by the Coral Consortium that will be community source (like Java) is a better way forward and I can see the EFF maneuvering themselves to be a player in being a consumer advocate when it comes to groups like the Coral Consortium which Sony is a founding member of in conjunction with Phillips .

    The EFF needs to make its self relevant or it to will perish .

  8. the zapkitty says:

    Anonymous wrote:

    zapkitty
    One problem you have is that you are believing what they say on the Investorshub board.

    ?
    No. I can honestly say no to that… when I refer to that forum as “la la land”, there is a very good reason 😉

    The point is not whether SuncMax can survive… previous discussion has had them as everything from criminal masterminds to potential bait offered up by Sony to draw the anti-DRM lightning…

    …the point is that Sony essentialy walks. Mediamax is in the wild and unchecked, any research into into how it might be adversely affecting user PCs still able to be quashed with a DMCA threat. The users who have had their PCs and privacy invaded receive a mere pittance from the labels that reaped billions while screwing over said users… and Sony can easily call something from SuncMax Mediamax 6 and proceed to malware to their heart’s content as long as they show a little discretion in the future.

    There’s more than reason enough to be pissed without believing a single word on the SuncMax forums.

    As to the SuncMax woes: aside from the humor value, at this time they are irrelevant to the point of Sony getting essentially a free ride… again.

  9. First, the obligatory “I am not a lawyer” statement. What I say is from the perspective of a layman. The purpose of a class action lawsuit is to recover damages, not to overturn draconian laws or bad business practices. Thus, once Sony perceived that making the damaged parties whole was the best business decision, Sony “caved” solely in a figurative sense. As ZAPKITTY pointed out, Sony is only being disciplined with a wet noodle. As much as I would like DRM to go away, class action lawsuits will not overturn draconian laws not stifle bad business practices. For that we will need to convince our lawmakers to pass laws outlawing these practices. (I know, a snow balls chance in hell). There is always the slim possibility that if consumer resistance is at a high enough level, that these companies will either go out of business or modify their bad business practices. In the meantime, ZAPKITTY keep exposing the hypocrisy.

  10. Anthony Youngman says:

    Actually, zapKitty’s being optimistic. He says “The users who have had their PCs and privacy invaded receive a mere pittance from the labels”. I’ve had my PC trashed, and as a consequence I have *LOST* the little redress that this agreement has negotiated!

    Note that, in order to get ANYTHING from this settlement, you are required to confirm that you have run the Sony-supplied updater or uninstaller. I’ve uninstalled MediaMax. But I used “format c:” to do so.

    So now I can’t claim any damages at all under this agreement unless I choose to re-infect my PC with this crap. No way, Jose!

    This settlement is only fit for loo-roll, and most probably not even that.

    Cheers,
    Wol

  11. Zap.
    Now I see why you are so pissed off.

    The free ride you have been on may be over !

    Such a pity!

  12. Anthony, if our PC is trashed you can opt out of the class and sue in your home town small claims court as part of the settlement. Sony waived those provisions in the EULA requiring you to litigate in NY and that limited your total recovery.

    Basically Sony fixed the flaws in the software (with the patches), is compensating the consumer, has agreed to change its EULA’s so that they are more consumer friendly, has stopped producing both XCP and MediaMax technology, and is likely going to get hit up with a big fine of sorts from the states and FTC…this seems like a pretty decent settlement.

  13. I tend to go with the zapkitty on this one, if for no other reason than:

    “Anthony, if our PC is trashed you can opt out of the class and sue in your home town small claims court as part of the settlement.”

    If the point of a class action suit is that you find yourself able to sue in small claims court then it really isn’t much of a class action victory. In fact, it really points out the issue here.

    The class action settlement is probably best avoided entirely (opt out) if you had any serious damages from the actions of Sony, and sue them yourself and use the settlement as proof of wrongdoing by Sony. But, if I had taken serious damages from Sony/XCP I wouldn’t think this settlement would help me in any other way.

    Mostly, I would wish I lived in Texas 🙂

  14. You can’t use a settlement as proof of wrongdoing. In a settlement there is always a provision saying that it is not an admittance of guilt.

  15. Ahhh, thanks for pointing that out.

    In that case, I don’t see any benefit at all to this settlement. My decision to avoid Sony/F4I/Sunncomm will now be permanent, since if there is not even an admission of guilt in a situation where “guilt” so clearly applies, then there is simply no hope at all for any consumer protection whatsoever.

  16. If you read the pdf from the heading “C Release of Claims” on page 15, it is clear that settlement class members are, in settling under the agreement, only releasing the defendents from “released claims” which are elsewhere defined. It then goes on at the top of page 17 to explicity exclude from “released claims” any claims relating to damaged computers or networks.

    IANAL, but my perception of that is that the class action does not make claims as regards any actual damage to computers or networks, and that, consequently, anyone who suffers such damage can bring a separate action for that, whether or not they are party to the class action, and whether or not they have opted out if they are.

  17. The benefit of the settlement is that the consumer gets a new non protected CD and gets a choice of mony or downloadable music as well as future assurances that future DRM software will not perform in a similar manner

  18. Sony has an escape from the settlement if too many people opt out. Also, the others may bail if their insurance doesn’t cover it. Here’s the relevant clause from the proposed settlement:

    D. Defendants’ Limited Right To Withdraw From Settlement
    Defendants have the right to withdraw from the settlement, if the number of timely and valid requests for exclusion from the Settlement Class exceeds 1,000. (¶ XI.H.)
    In addition, SunnComm and F4I have the right to withdraw from the settlement at any time before January 15, 2006 or the date notice is first disseminated, whichever is earlier. (¶XI.L.)
    This provision allows SunnComm and F4I, and these defendants alone, to review the terms of the settlement with their respective insurance carriers, which they were unable to do during the December holidays, while enabling the parties to move forward with the preliminary approval process. If either SunnComm or F4I withdraws from the settlement prior to the date notice is first disseminated, the withdrawn party will no longer be considered a “Released Party” under the Settlement Agreement. (¶XI.L.)

    http://www.sunbelt-software.com/ihs/alex/sonysettleme23423423434nt.pdf

  19. Which is what you get when you buy music from any number of other companies …

  20. Sorry, my post was missing the quote by Anonymous

    “The benefit of the settlement is that the consumer gets a new non protected CD and gets a choice of mony or downloadable music as well as future assurances that future DRM software will not perform in a similar manner”

  21. Seems the Register got it right afterall.

    “This is, in fact, such an important matter that the worst possible development would be to find the EFF arguing the case. That’s because EFF will do what it always does: lose, and set a legal precedent beneficial to the entertainment pigopolists. By the time these pale vegetarians get finished, spreading musical malware will be considered a spiritual work of mercy.”

    http://www.theregister.com/2005/12/06/eff_needs_to_die/

  22. This is not enough. Hope there will be 999 more people who will withdraw from the settlement if it’s approved by the court.

  23. “Also, the others may bail if their insurance doesn’t cover it. ”

    I’m trying to see why SunnComm and F4I would bail from the settlement? Isn’t their obligations just to provide clean uninstallers and make them available from several frequented locations?

  24. “eff_needs_to_die/” ha ha

    I hadn’t read the Register’s article before, just one question, why do they say calling it a rootkit is an exaggeration? Isn’t that exactly what it was?

    Also, if everything that was said here is true (I don’t enjoy reading all that lawyer wording crap it’s a waste of time, why don’t they just say what they mean clearly?), I agree very much with Zapkitty.

  25. Can we expect the Texas AG to follow suit as hastily on this company? Or at a minimum the New York AG follow up with a class action here?

    http://www.washingtonpost.com/wp-dyn/content/article/2005/12/29/AR2005122901456.html

  26. Why? Look at the issues that the Texas AG and NY AG raised against Sony.

    It is not that the products had security vulnerabilities, but the way they were foisted on the consumer.

    You SunnComm shills understand nothing. Read the lawsuit documents before demonstrating your ignorance here.

  27. Why? yes why? Please listen to what the Texas AG has to say about vulnerabilities/spyware before trumpeting inane hyperbole!

    http://www.washingtonpost.com/wp-dyn/content/article/2005/12/29/AR2005122901456.html

    anonymous says “I’ll buy a clue for $1.00 please Alex”

  28. the zapkitty says:

    Jonathan wrote:
    (over in the Happy Holidays thread)…

    “Second guessing the decision of EFF proposed settlement is hindsight.”

    No, it is not. If the class is made aware of just how badly the EFF fucked over the consumers it claims to be protecting, then this can go forward.

    In court Sony might be found innocent… but if found culpable then Sony will almost certainly have to recall the millions of Mediamax malware CDs currently in the wild, and would definitely pay far more than the pittance the settlement demands, also they would have much stronger constraints against distributing malware placed upon them…. which is why they want to settle.

    “If they agree why should we beupset?
    It was a suit brought by them, and we are bystanders, right ?”

    No, the EFF claim to be representing consumers and setting the pace for the “Electronic Frontier”… which makes their perennial screwups very much the business of anyone with a PC.

  29. Wilber Says:
    December 31st, 2005 at 9:12 am

    Why? yes why? Please listen to what the Texas AG has to say about vulnerabilities/spyware before trumpeting inane hyperbole!
    —————–

    If Microsoft built in flaws on purpose to its operating system that made the brakes in your car fail, then yes I would expect Microsoft to be responsible.

    Sony/F4I/Sunncomm did exactly that. They sold music embedded with intentionally hidden functionality (not all CD’s contained a label indicating they are copy protected), and modified existing, tested and unrelated software (the Windows OS and drivers) in order to open new security flaws for their own benefit. If any hacker did 1/10th of the steps, they would be much more quickly caught and punished. The trick for serious hackers is to work for Sony, which gives them license to do as they please.

    This wasn’t an “accident”. It wasn’t just pure incompetence in software design (although that is clearly a major factor). It was a completely failed implementation, failed management, failed legal agreements, failure to respect the consumers rights, failed testing, failed/nonexistant removal, and failed in recalling the disks as soon as the issue was pointed out to them. Sony was extremely proactive in pushing this shit out, and then massively reactive in dealing with the consequences. Its not something I like in a company I am purchasing goods from.

    Sony/F4I/Sunncomm only responded when they absolutely had to, not a minute sooner, and they did the absolute bare minimum possible while accepting absolutely no blame nor responsibility, and don’t even say they won’t try again soon (everything is stated as a “temporary” retraction).

    The mere fact that Sony/F4I/Sunncomm don’t get these differences is really the entire issue. Had they realized they aren’t a software company, and people aren’t expecting to find this software required to play their music, don’t want the security issues in the first place, didn’t accept the agreement but got the software anyway, and actually care about their consumer rights. We never bought Sunncomm products, no one goes to the store to buy their product as a standalone product.

    Do I ever expect Sony/F4I/Sunncomm to figure this out? No, they won’t and no amount of pointing out the obvious will help them. They are a lost cause, and I see no reason at all to spend one penny on their “products”.

  30. Wow, now that is a very wildly concocted conspiracy theory. As is, it cannot be proven that neither Microsoft or SunnComm intentionally designed their software with these vulnerabilities “built in”. But hey stranger things have happened!

    “We never bought Sunncomm products, no one goes to the store to buy their product as a standalone product.”

    I highly doubt that “we” were the intended customer base but Sony/BMG certainly was. And “we” are but an unwitting receiver at the behest of Sony/BMG attempting to protect copyright/theft.

    As to the rest of your wildly accusatory conspiracy theory,

    Happy New Year!

  31. Wow, now that is a very wildly concocted conspiracy theory. As is, it cannot be proven that neither Microsoft or SunnComm intentionally designed their software with these vulnerabilities “built in”.

    Sony’s malware is designed to be installed on people’s PC’s without their informed knowledge and consent, and is designed to be difficult to remove except via complete system reinstall. That is not an accident–that is the sole design purpose of the malware. Can you suggest any other reason for the malware’s existence?

  32. My understanding as regards the Texas case is that the allegations are that Sony have sold CD’s which infringe state legislation as regards software which (a) contains spyware, and/or (b) installs without the user’s consent.

    I am not aware that there are any allegations that Microsoft have done that.

    Perhaps Wilber could explain.

  33. There is absolutely no conspiracy theory involved, its simply a summary the facts. I don’t have to “guess” at anything, thanks to the Sunncomm prospectus, Sony actions, Sony statements to the press, and independent analysis of the software they tried to force on unsuspecting customers.

    Wilber wrote:
    “I highly doubt that “we” were the intended customer base but Sony/BMG certainly was.”

    Precisely my point. Sunncomm wrote the software for Sony, not for the consumers. The problems in their analysis and software design are immeditate results of those errors; since the actual user of the software isn’t Sony but rather the consumers. That’s why its a clear case of FAILURE from the perspective of honest consumers, and continues to be a “winning product” according to sunncomm mouthpieces.

    Its all a matter of perspective, and sunncomm is absolutely free to continue on their path. Its also completely acceptable for me to say I will avoid Sony/sunncomm/f4i on a permanent basis.

  34. tRellium Says:

    December 31st, 2005 at 12:54 pm

    “Its all a matter of perspective, and sunncomm is absolutely free to continue on their path. Its also completely acceptable for me to say I will avoid Sony/sunncomm/f4i on a permanent basis. ”

    Yes it is, “What a country”! Happy New Year

  35. More interpetations than Bayer has aspririn !

    Facts are, whether liked or not DRM is part of the future. We can moan and complain about rights all we want and should if they afe violated.
    The fact is the Music industry has the right to protect itself against a unauthourized use as well.
    As long as the parameters and standards are set and acceptable without violating privacy or security, why should unauthorised copying or dowloading be allowed to continue.
    Music is not created, produced , or marketed without costs.

  36. the zapkitty says:

    Jonathan Says:

    “More interpetations than Bayer has aspririn !”

    Hmmm?

    Sorry… No.

    It has been quite clear that the only “interpretations” are from the unfortunate SuncMax supporters who see their shot at dominating the DRM industry being blown away, along with their stock investments, no matter how badly the EFF eff’ed the case up.

    We’ll be hearing more, tho… word from one of the few reliable posters over in la la land is that Sony actually had given up on CD copy protection… irrelevant of the settlement.

    (Which, if so, is pure EFF…. valorously chasing down and beating to death something that the opposition had decided to throw away anyway… 🙂 )

  37. Zap.

    Lot of fiction in that belief ! That like stating the Pope has given up on Christanity!
    I can’t wait for that to be trumpeted by the anti- DRM minions!

  38. the zapkitty says:

    Jonathan wrote:

    “Lot of fiction in that belief !”

    Sorry, no.

    I just reported what you already well knew… that different reports from different sources indicate that Sony is proceeding with no copy protection. The reports indicated this was to continue indefinitely. Which could mean anything. Or the reports could be wrong. 🙂

    But the existence of the reports, from folks who’ve asked Sony BMG direct, or had known industry contacts with same, just are… they simply exist.

    “That like stating the Pope has given up on Christanity!”

    The Pope has converted to Nekomimiology! 🙂

  39. Anonymous says:

    Didn’t Sony violate criminal law due to its unauthorized trespass on the personal computers? Sony also violated copyright by including code from some freeware programs into its DRM (of which it was not authorized).

    Aren’t these both criminal violations, and as such shouldn’t they be punished accordingly?

    Findings here seem mostly forward looking, idealistically preventing from Sony making the same violations in the future (which should have previously been enacted).

  40. Ned Ulbricht says:

    Anonymous,

    From The LAME maintainers’ Open letter regarding the Sony/BMG XCP case

    […]
    Right now The LAME maintainers aren’t interested in initiating a legal battle with Sony BMG. We live in a social competent world where we don’t need to pull the weapons and are able to talk about what needs to be done to correct mistakes, right ? But we expect Sony BMG to take appropriate action and tell the public about those actions.

    As a threshold matter, in the U.S., until we’ve seen copyright registration(s) for any works that allegedly may have been infringed, then it’s too early to consider them. (I’m less familiar with copyright formalities in other Berne Convention countries, including the U.K.).

    Please also be aware that many people make a distinction between “freeware” and “Free Software”. Software licensed under the GNU Lesser General Public License, and similar licenses drafted by the Free Software Foundation and by others, generally is considered Free Software.
    As is often said, “Not free as in beer, free as in speech.”

  41. Being anti Sony/sunncomm/f4i is not being anti-DRM. DRM is fine, but intrusive, manipulative, defective, disrespectful, untested, and hidden is not. That is what sony/sunncomm/f4i is to me.

    I want DRM that protects MY rights, not theirs. I want DRM that lets me buy the access to the music once, and not every single time I upgrade my operating system. DRM that manipulates driver files or system files is not tolerant of changes to the operatig system, so there is no reason to belive it will work in the future.

    So, I want USEFUL drm, and sony/sunncomm/f4i have proven beyond any doubt whatsoever that they are not in this arena. They only want drm useful to THEM. They think “protection” is a word that applies exclusively to them. THats fine, they can do that but I will never spend a penny of my money on this mindset.

    My money goes to a DRM that lets me register my music as I buy it on any format, lets my in home technology evolve over time without the continuous request of Sony to fork out more money to them to avoid being a “pirate” in their eyes.

    Sony did do us a big favour though – it showed us how very far separated consumers are from their corporate mentality.

  42. This article here

    http://www.publish.com/article2/0,1895,1900159,00.asp

    expresses my thoughts on drm pretty well. There are several companies out there building DRM that is a positive influence on my music collection. I want MORE music, not less. Well, I want less sonybmg music, but I want more in general.

    I like the concepts found at http://www.downhillbattle.org/itunes/
    in which iTunes shows the percentage of my payment that reaches the artist. That has a HUGE value to me, since I am buying their music and not the record labels administrative overhead.

    Would I buy more music that benefits the artists I like? Absolutely.

    Would I pay more for that same music? Absolutely. If I had to pay $1 per song and have the artist get 8% of it or $1.50 and have them get 1/3, then the extra 50 cents is cheap.

    But, do I want to pay to support the record industries legal costs and DRM development which are targeted at reducing consumer rights, then you can’t GIVE me that music for free.

    That, more than anything else, is why I can’t be a pirate. I don’t want sony’s drm music, even for free.

  43. Edward Kuns says:

    If only the same standards applied to file sharing software as to this current crop of DRM-malware. File sharing software clearly has non-infringing uses. Sadly, most of it has been used primarly to viollate copyright and thus to “steal,” but non-infringing uses are clear and obvious. While I have never in my life stolen music — I have neither uploaded nor illegally downloaded music. I *have* *legally* downloaded music. It’s important for me to pay for what music I listen to because I want to encourage the artists to make more.

    However, I have used file sharing software for many totally legal uses — bittorrent for downloading the latest Fedora Core DVD. (I never used Napster or Gnutella or any of the others.)

    On the one hand, the recording industry argues that file sharing software is so dangerous to their buisness method that non-infringing uses shouldn’t matter. On the other hand, the same people seem to argue that this strongly infringing mal-DRM — since it does have “non-infringing” uses — should be given a pass. In other words, as usual, the recording industry wants to have it both ways.

    As has been said many times already, few people would object to HONEST DRM. That is to say, DRM that restricts copyright-violating acts without restricting non-copyright-violating acts. Such DRM would not have the profit-generating potential that the recording industry thinks or says it would, however. To increase their profit by more than a trivial amount, I think the only DRM that will do that is DRM that restricts legal, legitimate use.

    I own hundreds of CDs. When I think that a CD purchase is likely to infect my computer with ANYthing I don’t want installed, that will drive me to use iTunes or to buy music online through other means. I already respect copyright. I don’t require software to take my computer over to the extent necessary to prevent me from breaking the law. The people who DO require this software are going to find ways around it. Always.

    As I understand it, the largest dent in recording industry profits is not file sharing, but is pirate physical CDs. There is no copy protection that will slow that down at all, since people who do that just mass copy the whole disk.

    Many assume that restrictive DRM is the recording industry’s best goal. The case has been made here many times and in many different ways that restrictive DRM is at best counter-productive and at worst self-destructive for the recording industry. I personally believe this, having lived through the 80s and 90s and watching the copy protection wars.

    The United States is supposed to be a free nation. One thing this means, necessarily, is that sometimes people will do the wrong thing and will not be caught. This is an unpleasant reality and an inescapable component of a free society. Anyone who wants 100% compliance with the law will have to move significantly closer to a police state.

    The music industry needs to understand this and needs to take the most EFFECTIVE actions possible. I hope that they do.

  44. I certainly understand the concerns stated and the expectatiom to have clean functually and user friendly DRMand or copy management.
    The reason for that very need , is because of the abuse caused by the dowloading and copying of music which is legally owned by the artists or his or her designated party.

  45. the zapkitty says:

    Jonathan wrote:

    “The reason for that very need , is because of the abuse caused by the dowloading and copying of music which is legally owned by the artists or his or her designated party.”

    Oh great… give the deliberately vague DRM scare tactics a rest, will ya?

    As an example:
    How many times have the shills popped up here screaming that using Mediamax was “mandatory”, was “required by law”… when it is not mandatory and the law couldn’t give less than a damn?

    Sony wrote up a EULA that stripped the user of all their court-mandated rights regarding the CDs they bought, while the DRM shills crowed that the user had no such rights and anyone who argued otherwise was a thief and a pirate.

    (Or are you actually willing to grant that court-mandated user rights have a place in DRM? )

    But Sony made the mistake of piggybacking this crap in on custom-ordered criminally invasive software that relied on loopholes in one operating system.

    When you look at it honestly what the media industries want to do is take control of user PCs… not to “protect against piracy”, but to entrench themselves, via bought laws and scare-tactics fiat, with a front row seat at what they see as the new gravy train of digital content.

    And they could give less than a damn about artist rights, consumer rights, or any damn thing else if public pressure and lawsuits didn’t make them fear losing access to the new gravy train altogether.

    Isn’t that the variety of DRM you really are arguing for?

    Take a stand and make yourself clear!

  46. Anonymous says:

    As regards the question:

    “Didn’t Sony violate criminal law due to its unauthorized trespass on the personal computers? Sony also violated copyright by including code from some freeware programs into its DRM (of which it was not authorized).”

    It is possible that F4I and/or their individual staff members have committed crimes (as opposed to civil violations) in the UK against the Copyright, Designs and Patents Act (1988). The authorities in the UK would investigate and bring charges – aggrieved copyright holders would have to complain, but would not have to fund any action. The maximum penalty on conviction in the Crown Court is two years imprisonment and/or unlimited fines.

    The investigating authority to complain to would probably be Buckinghamshire County Council trading standards department, as F4I’s registered office is in Banbury.

  47. Anonymous says:

    Correction – Banbury is in Oxfordshire, so it would be Oxfordshire C.C. trading standards.

  48. Anonymous says:

    I’m not located in the UK, but I hope that some affected users there would enforce their legal rights and push for a criminal investigation of Sony’s behaviour. Ignorance is no excuse for violating the law.

    My concern would be that no one would have the conviction to pursue the giant that is Sony, with fear of being entrenched in an expensive legal battle and embarrassing the government. What would the lobbyists say? Where is the justice?

  49. the zapkitty says:

    Sony is facing actual criminal complaints in Italy.

    As for elsewhere… they might yet… some types of investigations take weeks to months. Remember that while the DMCA-type laws that the media companies bought for themselves (both in the USA and Europe) have definitely slowed down investigations they obviously haven’t stopped all of them.

    Of course nothing else might happen… but there’s a very real chance that something further could unfold.

    As well, the Texas criminal suit is still ongoing, and with some chance that more could be added…

    And while the proposed class-action sellout is downright annoying even that might be reversed.

    It’s all iffy and conditional, and naturally Sony and company are battling to shift the odds in their favor, but Sony can’t be said to be scott-free yet… not by a long shot.

    But DRM malware such as XCP and Mediamax, that starts out with the mindset that “You’re obviously a thief if you put a CD in a PC for any reason so we’ll just screw over your PC start with!” … that mindset is so on it’s way out.

    I’m hot-tempered :), but a cold realistic appraisal says that even if the settlement goes forward as is and no further revelations occur, your particular kind of industry is now the unwanted black sheep of DRM.

    I’m sorry, Sunncomm/Mediamax investors, but no amount of “…somebody must be stealing something somewhere…” protests can excuse that kind of malware.

  50. Zap, A differing view?

    MacVoices #520: Winn Schwartau on Why the Sony Rootkit Issue Was a Non-Issue Dec 21, 2005
    Internet security expert and notable Mac switcher Winn Schwartau discusses the Sony rootkit issue and why he didn’t bother with it.

  51. “You’re obviously a thief if you put a CD in a PC for any reason so we’ll just screw over your PC start with!” …

    Whether you are or not only you know!

    The number of illegal downloads and or unauthorised copies maybe in the Billions in number. Why should this not be curtailed. If there were defects in the technology that will be fixed!
    If Sony broke the law they will take responsebility and the courts will bring relief to those that have been affected.
    On the same token then those that broke the law by “stealing”illegal downoading should be brought to justice.
    Matters not what you take without paying big sor small items of worth.
    If you take something illegally you are breaking the law!

  52. Jonathan,

    If you listen to the Schwartau interview, you’ll realize that the “summary” of it that you quote is inaccurate. He says it’s a non-issue FOR MAC USERS.

  53. Crazed Music Thief says:

    I urge everyone to write to the court and ask an amendment be made to the settlement. Class members should be able to have the bad discs replaced with a physical new disc. Not everyone has the access to be able to download their settlement offer.

  54. the zapkitty says:

    Ed Felten wrote:

    “Jonathan, If you listen to the Schwartau…”

    I saw them leaping upon that over in la la land.

    I was thinking to myself that Schwartau’s expressed opinion that the malware was the result of an error in judgment rather than intentional really wasn’t that much to crow over…

    May the Puma Sisters preserve me from ever a kindred fate… they are desperate over there.

  55. Anonymous says:

    Ed

    “If you listen to the Schwartau interview, you’ll realize that the “summary” of it that you quote is inaccurate. He says it’s a non-issue FOR MAC USERS. ”

    The SunnComm shills have a habit of missing the core points. It is quite deliberate. Just like after reading all the very articulate articles and comments about why people find the method through which MediaMax was deployed and the insecurities it opened their PCs to the core issues, they conclude that those against it are against it because they are pirates and music thieves. They have never ever addressed the issues raised.

  56. the zapkitty says:

    And shouldn’t that group of folks whose afflicted CDs couldn’t play in their (usually older) standalone CD players be eligible for physical replacements too?

    At least they should be made aware of the circumstances.

  57. “And shouldn’t that group of folks whose afflicted CDs couldn’t play in their (usually older) standalone CD players be eligible for physical replacements too?”

    And, people who buy the CD’s from used CD shops as well, or library copies. I don’t like that Sony is only recalling via their own network, and not outside of it. Those CD’s are inherently dangerous, and there should be a responsibility to remove them from the marketplace in as many places as possible, including arranging an ongoing alert when these CD’s are sold on internet sales sites (ie ebay).

    I would also like to see more clear terminology than just “digital rights management”, since what that is differs so much depending on which who is reading it. Its really “Digital Record Label Rights Management”, more than the rights of the artists (many of which do not agree with the concept) and the consumer for whom “rights” pertain to different sorts of law.

    I see DRM targetted FOR consumers being inherently different than the DRM for the record labels. They want protection from pirates, I want protection from the record labels.

  58. the zapkitty says:

    tRellium wrote:

    “Those CD’s are inherently dangerous, and there should be a responsibility to remove them from the marketplace in as many places as possible”

    Yes, there is that.

    The media companies are now having their somewhat twisted version of a war in a faraway place. And yes, it’s a politically unwinnable war waged by an economic giant against the consumer with little technical knowledge.

    But afterwards…

    …who cleans up the millions of unexploded bombs scattered across the countryside by Sony ?

  59. Edward Kuns says:

    Jonathan:


    The number of illegal downloads and or unauthorised copies maybe in the Billions in number.

    “May be” is the key phrase here. It also may be much lower. There is more than one issue here. First, the number of illegal copies made. Second, the translation of those illegal copies into lost sales. The recording industry exaggerates both. Most people agree with you to the extent that those who illegally copy music should be caught and punished.


    If Sony broke the law they will take responsebility and the courts will bring relief to those that have been affected.

    That’s a huge assumption (that Sony will take responsibility and that the courts will bring effective relief). It seems significantly more difficult to bring a huge corporation to justice than it is to bring an individual to justice. What the software on Sony’s music CDs did was wrong in many ways, not only legally but also ethically. To the extent that laws don’t exist yet to make some of those acts illegal is a hole in the laws. To the extent that laws DO exist to make those acts illegal, we haven’t yet seen many effective prosecutions against companies using those laws.

    It’s far easier in the courts to go after thousands of illegal file sharers than it is to go after a single large corporation.

  60. Ned Ulbricht says:

    The settlement agreement recites on pp.34-35:

    If, at or after the Fairness Hearing, the Settlement Agreement is approved by the Court, Plaintiffs shall promptly submit to the Court the Judgment:

    […]

    4. Providing for Defendants’ waivers of the limitation of liability provisions (Article 6 of each of the XCP EULA and the MediaMax 5.0 EULA; Article 4.1 of the MediaMax 3.0 EULA), and the New York forum selection clauses (Article 10 of each of the XCP EULA and the MediaMax 5.0 EULA; Article 6.1 of the MediaMax 3.0 EULA) of the EULAs, only to the extent that a person pursues non-Released Claims against Defendants on an individual, as opposed to class action or mass action, basis;

    The settlement agreement does not appear to contain a waiver by the Defendants of any purported agreement under the Sony BMG EULA Article 10. … WAIVER OF TRIAL BY JURY

    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.

    (N.D.Cal. complaint Exhibit A, p.40; Exhibit B, p.46).

    The concurring opinion by Justice Chin of the California Supreme Court in Grafton Partners v Superior Court (Aug. 2005) advocates on p.3 (p.30 in PDF):

    Indeed, [California] should join other jurisdictions in recognizing that “there is no abstract public policy against contractual waivers of the right to civil jury trial.”

    And continuing onto the next page, Justice Chin observes, “[T]he Legislature has yet more reason to adopt the majority rule that predispute jury waivers are enforceable.

  61. the zapkitty says:

    Please, folks, please post intelligent debate, witty commentary, reasoned arguments, and artfully crafted outright BS.

    Please… I just got off of the most insane session in la la land and my head hurts… literally.

    I pointed out the settlement links above by Herr Professor Doctor Felden, and how certain questions were now answered.

    The SuncMax investors were quick enough to seize upon the obvious “Mediamax 6.0” possibilities, but went into shock when told that the old school “hijack the PC” tactics were now forbidden by the settlement, and that Sony was going to trust the consumer.

    Shock as evidenced by complete and utter denial, denial repeated again and again… even tho the text agreed to by Sony was staring them in the face.

    As the discussion whirled in back-biting circles I pointed out that Sony would no longer attempt to preempt or interfere with user rights and one person responded that Hollywood would use its clout to remove those rights this year…


    … but the veriest pinnacle of insanity was reached when, in answer to the fact that hijacking the PC was now forbidden to Mediamax, someone else stated that the user would simply be presented with the following popup upon installation, and I quote:
    .
    +++++++++++++++++++
    Do you accept the conditions set by mediamax

    Y N
    +++++++++++++++++++
    .
    ….


    … and it would say nothing else.

    At that I gave up and came over here in search of intelligent lifeforms. The inhabitants of la la land were cheering their slowly rising stock prices.

    … dId I mention that the mass insanity literally gave me a headache? … first time that’s ever happened for purely intellectual reasons…

  62. the zapkitty says:

    Ned Ulbricht wrote:

    “The settlement agreement does not appear to contain a waiver by the Defendants of any purported agreement under the Sony BMG EULA Article 10. … WAIVER OF TRIAL BY JURY”

    Uh-oh…

    (the zapkitty searches the EULA and the settlement…)

    Crap.

    That slightly limits recourse for all the trashed PCs…

  63. Zapkitty, I’m too lazy to search all of “la-la land” to see if this has been raised there, but the introduction to the section on injunctions is brutally frank. Section IV.A on page 26 of sonysettlementagreement.pdf:

    The Parties expect that, by the date of the Fairness Hearing, SONY BMG will have entered into an enforceable, nationwide agreement resolving one or more of the Government Inquiries. The Parties also expect that the resolution of these Government Inquiries will include, at least, the restrictions on SONY BMG’s future conduct stated below in Paragraph IV.B. …

    It goes on and seems to say that the proposed injunctions in the settlement are a minimum that will only apply if the Attorney Generals’ cases don’t result in stricter limitations (by the date of the fairness hearing).

  64. the zapkitty says:

    Yes, of course.

    The settlement terms regarding the injunctions, the rules that will govern the future behavior of Sony (and by default Mediamax) are unambiguous and inarguable.

    And I did point out that the terms, as restrictive as they were to the “hard-liners”, were the best possible… that as unhappy as I was with the settlement, for example, it could only get worse for them.

    These simple documented facts didn’t slow ’em down one bit.

    The few more sane ones will chime in sometime, I’m sure, but it is a frightening example of how people can be programmed to reflexively disregard facts, logic, and the rights of others… if they believe there’s financial advantage in it.

    And Sony/SuncMax has been programming those poor bastards for years…

  65. Is there a safe way to remove/uninstall the Mediamax stuff that was installed on my computer without my agreeing to the EULA? I never ran that CD again (and, yes, I’d like Sony to replace that piece of trash or give me my money back) so the sbcphid.sys is not running but I’ve got 12 MB of junk cluttering my computer now. I’d rather not reformat my drive but I haven’t seen another solution described on this site.

    BTW I have not bought a CD since October when Sony infected me. (I have never downloaded music because I don’t like the limitations imposed on me by most legitimate sellers and I don’t want the security issues of the more dubious file sharing sites.) I will only buy CDs that do not require software to be installed on my computer. Life is too short to spend it in the neverending and unrewarding battle against spyware, malware, viruses, etc. Eventually, I may not be able to get any new music – but I haven’t heard much new music lately I really liked anyway. Maybe Sony and the other record companies ought to consider that the significant decline in CD sales is not because people are ripping them off but because the quality of their product has really deteriorated.

  66. Ned Ulbricht says:

    Hull v Sony BMG Music Entertainmentt filed in the Superior Court of California alleges on pp.18-19:

    104. Sony BMG has inserted several unconscionable provisions EULA that
    accompanies the XCP and MediaMax CDs. These provisions include:
    […]
    j. Restrictions on the user’s ability to seek redress in California courts, under California law, and the purchaser’s ability to seek a trial by jury;

    The heading of this complaint on p.1 shows JURY TRIAL DEMANDED.

  67. the zapkitty says:

    Ned Ulbricht wrote:

    “The heading of this complaint on p.1 shows JURY TRIAL DEMANDED.”

    So, since the EFF is so prominently displayed in the complaint, why didn’t didn’t they remember to get the jury trial waiver tossed out in the proposed settlement?

  68. the zapkitty says:

    SAW wrote:
    “Is there a safe way to remove/uninstall the Mediamax stuff that was installed on my computer without my agreeing to the EULA?”

    Iffy. You might want to wait for an official post-settlement uninstaller when/if it’s released.

    That uninstaller version is supposed to be thoroughly checked out by a third party, and will tie directly back to Sunncomm with immediately enforceable injunctions if they screw it up… or try to screw you over.

  69. Ned Ulbricht says:

    Guevara v Sony BMG Music Entertainment filed in the Superior Court of the State of California alleges on p.8:

    35. Defendant has violated the CLRA [California Consumer Legal Remedies Act] in at least the following respects:
    […]
    b) In violation of Section 1770(a)(9), defendant has represented that the purchase [o]f its music CDs confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law.

    The Guevara complaint is captioned on p.1 “JURY TRIAL DEMAND”.

  70. Ned Ulbricht says:

    California Civil CodeSection 1770(a) provides:

    The following unfair methods of competition and unfair or
    deceptive acts or practices undertaken by any person in a
    transaction intended to result or which results in the sale or lease
    of goods or services to any consumer are unlawful:
    […]
    (14) Representing that a transaction confers or involves rights,
    remedies, or obligations which it does not have or involve, or which
    are prohibited by law.

    The Guevara complaint presumably meant to refer to Section 1770(a)(14). Although I note that Section 1770(a)(19) also declares unlawful “Inserting an unconscionable provision in the contract.”

  71. I think that the only effective copy protection for a music cd, is to sell the jewel case and packaging etc, but enclose a cd that won’t actually play at all.

    And then to have an EULA to the effect that there is no guarantee the cd will work.

    If you look at the following link, it appears that is the direction things are now going in.

    http://www.consumeraffairs.com/news04/2006/01/coldplay.html

  72. Edward Kuns says:

    Josh, thanks for the above link. Looks like other labels are getting into the act. From Amazon feedback on that CD, I found the following link that shows images of the CD, the “EULA,” and so on.

    http://itch.in/journal/bad-bad-coldplay

    Anyone have any idea which software is on that CD? Is it something we are already aware of, or is it a different animal? I’m not going to buy this CD to find out.

  73. Edward Kuns says:

    Whoops, sorry. I mean “John” not “Josh”. Typo.

  74. Anonymous says:

    Looks like an old Macrovision. The CD was released in June. CDS200, CDS300?

  75. the zapkitty says:

    It was CDS300…
    …just google the wide number of complaints at that time 🙂

  76. But for XCP including a rookit, attention might not have been drawn to Sony’s Mediamax issues. Which begs the question: how many other drm’s on other manufacturers cds are similarly tainted, but have not come to light because they have not produced overt problems that are obvious to the average user.

  77. the zapkitty says:

    Not that many, because not that many use drm… at this time.

    The wave of “aggressive DRM”, and its accompanying stupidities, was heralded by 2004’s Macrovision and Mediamax war with each trying to corner the CD DRM market.

    And, actually, Dr. Felten had been looking into the Mediamax stuff beforehand.

    But we speak of “not that many” in the terms of the Big Four, which automatically means millions of afflicted CDs per each stupidity uncovered.

  78. That in’t quite the emphasis I had in mind – the thing is that the XCP revelation focussed attention on these matters and the point I am now making is whether it is just bad luck that Sony picked a loser twice in a row. Or is this the first tip of the iceberg to show of a problem that is already lurking in other manufacturers dics.

    I think that drm is going to become increasingly problematic. As technology converges, the entertainment industry will seek to intrude into areas of technology which hitherto have been unrelated to music. What, for example, if the new age pirate becomes identified as the schoolkid who trades music that is stored on digital camera flash cards.

    And what if someone devises a method of copying Blu-Ray discs, where part of the process involves lowering the temperature of an original. Is Congress going to outlaw domestic refridgerators and freezers, or require that they have sensors and firmware in them and are connected to the internet via a secure and monitored connection.

  79. Anonymous says:

    It is the tip of the iceberg – not only with cd’s but also with drm in general.

    Take, for example, the drm being built into vista. What if hackers start creating and unleashing attacks that invade the “secure” part of the pc and hide there. Are security companies going to be allowed to develop products that deal with those viruses. Or will Microsoft have the monopoly on AV products and protection because of the DMCA?

  80. the zapkitty says:
  81. A Class Action has now been launched in Canada over this issue.

    http://ottsun.canoe.ca/News/OttawaAndRegion/2006/01/06/1381035-sun.html

  82. BOYCOTT BOYCOTT BOYCOTT BOYCOTT BOYCOTT BOYCOTT BOYCOTT

    Sony BMG, Arista Records LLC, Interscope Records, UMG Recordings Inc., Capitol Records Inc. and Warner Bros. Records Inc.

    These are the record labels who sued a single mother 222K dollars!!!! I don’t know about you but I will never buy music from these people again, in fact i will try my hardest to cheat these people as much as possible. As if billions of dollars aren’t enough they will sue people? Poor people at that.

    Release a good band so you can make money at their shows, music is for everyone, in the 50’s and 60’s these same companies were giving music away just so it would be heard,

    BOYCOTT BOYCOTT BOYCOTT BOYCOTT BOYCOTT BOYCOTT BOYCOTT

  83. u me pls frind me id raaz tolove