COPYRIGHT, PRIVACY
Internet, record labels, technology


The Electronic Frontier Foundation (EFF) along with two leading national class action law firms has filed a lawsuit against Sony BMG, demanding that the company repair the damage done by the First4Internet XCP and SunnComm MediaMax software it included on over 24 million music CDs. EFF say that they are pleased that Sony BMG has taken steps in acknowledging the security risks caused by the XCP CDs, including a recall of the infected discs. However, these measures still fall short of what the company needs to do to fix the problems caused to customers by XCP, and the EFF says that Sony BMG has failed entirely to respond to concerns about MediaMax, which affects over 20 million CDs – ten times the number of CDs as the XCP software. ”Sony BMG is to be commended for its acknowledgment of the serious security problems caused by its XCP software, but it needs to go further to regain the public’s trust,” said Corynne McSherry, EFF Staff Attorney. “It is unconscionable for Sony BMG to refuse to respond to the privacy and other problems created by the over 20 million CDs containing the SunnComm software.”

The suit, filed in the Los Angeles County Superior court, alleges that the XCP and SunnComm technologies have been installed on the computers of millions of unsuspecting music customers when they used their CDs on machines running the Windows operating system. Researchers have shown that the XCP technology was designed to have many of the qualities of a “rootkit.” The EFF allege that it was written with the intent of concealing its presence and operation from the owner of the computer, and once installed, it degrades the performance of the machine, opens new security vulnerabilities, and installs updates through an Internet connection to Sony BMG’s servers. The EFF also suggest that the nature of a rootkit makes it extremely difficult to remove, often leaving reformatting the computer’s hard drive as the only solution. When Sony BMG offered a program to uninstall the dangerous XCP software, researchers found that the installer itself opened even more security vulnerabilities in users’ machines. Finally the EFF allege that Sony BMG has still refused to use its marketing prowess to widely publicize its recall program to reach the over 2 million XCP-infected customers,  has failed to compensate users whose computers were affected and has not eliminated the outrageous terms found in its End User Licensing Agreement (EULA).

The MediaMax software installed on over 20 million CDs has different, but similarly troubling problems. It installs files on the users’ computers even if they click “no” on the EULA, and it does not include a way to fully uninstall the program. The software transmits data about users to SunnComm through an Internet connection whenever purchasers listen to CDs, allowing the company to track listening habits – even though the EULA states that the software will not be used to collect personal information and SunnComm’s website says “no information is ever collected about you or your computer.” If users repeatedly requested an uninstaller for the MediaMax software, they were eventually provided one, but they first had to provide more personally identifying information. Worse, security researchers recently determined that SunnComm’s uninstaller creates significant security risks for users, as the XCP uninstaller did.

“Music fans shouldn’t have to install potentially dangerous, privacy intrusive software on their computers just to listen to the music they’ve legitimately purchased,” said EFF Legal Director Cindy Cohn. “Regular CDs have a proven track record – no one has been exposed to viruses or spyware by playing a regular audio CD on a computer. Why should legitimate customers be guinea pigs for Sony BMG’s experiments?” “Consumers have a right to listen to the music they have purchased in private, without record companies spying on their listening habits with surreptitiously-installed programs,” added EFF Staff Attorney Kurt Opsahl, “Between the privacy invasions and computer security issues inherent in these technologies, companies should consider whether the damage done to consumer trust and their own public image is worth its scant protection.” Both the XCP and MediaMax CDs include outrageous, anti-consumer terms in their “clickwrap” EULAs say the EFF. For example, if purchasers declare personal bankruptcy, the EULA requires them to delete any digital copies on their computers or portable music players. The same is true if a customer’s house gets burglarized and his CDs stolen, since the EULA allows purchasers to keep copies only so long as they retain physical possession of the original CD. EFF is demanding that Sony BMG remove these unconscionable terms from its EULAs. The law firms of Green Welling, LLP, and Lerach, Coughlin, Stoia, Geller, Rudman and Robbins, LLP, joined EFF in the case. Sony BMG is also facing at least six other class action lawsuits nationwide and an action by the Texas Attorney General. EFF looks forward to representing the voice of digital music fans in the resolution of these disputes between Sony BMG and consumers.

To add to this, New York Attorney General, Elliot Spitzer, is urging retailers to pull Sony BMG CDs from their shelves after an investigation found that, despite a product recall, there are still CDs for sale loaded with the much publicised ‘rootkit’ based copy-protection software. Meanwhile the District of Columbia is now suing Sony BMG over these CDs. Sony BMG has now announced that it will now “diligently re-evaluate” how it uses such DRM going forward – not surprising after the recall of an estimated 4.7M discs in the US but the avalanche of bad press and mounting consumer opposition over the past month will no doubt underscore its future anti-piracy strategies:

http://news.bbc.co.uk/1/hi/technology/4514678.stm

See Law Updates December 2005 for A diary of the Sony-BMG ‘rootkit’ fiasco – how not to introduce Digital Rights Management and for more comment on DRM seehttp://www.eff.org/deeplinks/archives/004106.php

For more on the Sony BMG litigation, see:
http://www.eff.org/IP/DRM/Sony-BMG/
EFF’s open letter to Sony:
http://www.eff.org/IP/DRM/Sony-BMG/?f=open-letter-2005-11-14.html

And see the article by Eric J Sinrod of Duane Morris LLP at http://www.mondaq.com/article.asp?articleid=36676&email_access=on