The Sony copy protection debacle has so many angles that the mainstream press is having trouble keeping track of them all. The rootkit. The spyware. The other spyware. The big security hole. The other big security hole. It’s not surprising, then, that at least one important angle has gone nearly undiscussed in the mainstream press: the likelihood that the Sony/First4Internet XCP copy protection software itself infringes several copyrights. (Note to geeks: Slashdot doesn’t qualify as the mainstream press.)
Matti Nikki (a.k.a. Muzzy) and Sebastian Porst have done great work unearthing evidence pointing to infringement. They claim that the code file ECDPlayerControl.ocx, which ships as part of XCP, contains code from several copyrighted programs, including LAME, id3lib, mpglib, mpg123, FAAC, and most amusingly, DVD-Jon’s DRMS.
These are all open source programs. And of course open source is not the same as public domain. Open source programs are distributed with license agreements. If you copy and redistribute such a program, you’re a copyright infringer, unless you’re complying with the terms of the program’s license. The licenses in question are the Free Software Foundation’s GPL for mpg123 and DRMS, and the LGPL for the other programs. The terms of the GPL would require the companies to distribute the source code of XCP, which they’re certainly not doing. The LGPL requires less, but it still requires the companies to distribute things such as the object code of the relevant module without the LGPL-protected code, which the companies are not doing. So if they’re shipping code from these libraries, they’re infringing copyrights.
How strong is the evidence of infringement? For some of the allegedly copied programs, the evidence is very strong indeed. Consider this string of characters that appears in the XCP code:
FAAC – Freeware Advanced Audio Coder (http://www.audiocoding.com/). Copyright (C) 1999,2000,2001 Menno Bakker.
He also points to evidence of copying from DRMS, which doesn’t look quite as strong, though it is very suggestive. (There are extensive similarities between DRMS and the XCP code, but because DRMS implements a decryption algorithm that offers fewer implementation choices than ordinary code does, it’s easier to imagine that similarities might have arisen by chance. I would have to study the two programs in more detail to say more. But let me reiterate that the DRMS evidence is at least very suggestive.)
The upshot of all this is that it appears the authors of at least some of these programs can sue First4Internet and Sony for copyright infringement. First4Internet wrote the allegedly infringing software and gave it to Sony, and Sony distributed the software to the public. Sony might not have known that the code they were shipping infringed, but according to copyright lawyers, there is strict liability for copyright infringement, meaning that lack of knowledge is not a defense against liability. (Lack of knowledge might reduce the damages.) So both companies could face suits.
The big question now, I suppose, is whether any of the copyright holders will sue. The developers of LAME wrote an open letter to Sony, saying that they’re not the suing type but they expect Sony to resolve the situation responsibly. They don’t say exactly what this means, but I expect they would be happy if Sony recalls the affected CDs (which it is already doing) and doesn’t ship XCP anymore. To my knowledge, we haven’t heard from the other copyright owners.
Being accused of infringement must be horribly embarrassing for Sony, given the number of ordinary people it has sued for infringing on a much smaller scale that Sony is accused of doing, and given that the whole purpose of this software was supposedly to reduce infringement. This is just another part of the lesson that Sony must have learned by now – and that other entertainment companies would be wise to learn – that it’s a bad idea to ship software if you haven’t thought very, very carefully about how it was designed and what your customers will think of it.