Sony malware: the legal perspective

Written by Geoff Richards

November 7, 2005 | 13:37

Tags: #copy-protection #digital-millennium-copyright-act #dmca #malware #sony-bmg #spyware #van-zant

Last week was lots of fun if you work in Sony-BMG's PR department. First, there was the discovery that the latest Van Zant CD installed a bunch of malware without the user's permission. After a mountain of negative press and public pressure, Sony-BMG saw sense and issued a patch to address customers' concerns.

Unfortunately for Sony-BMG, the move may have come too late to dodge the US national pastime: the class action lawsuit. According to, San Francisco law firm Green Welling, are already salivating over this.

"We're still investigating the case and talking to different people about what happened to them," said Robert Green, a partner at The Firm. Green's main argument will be that customers should be informed if an audio CD's copy protection extends to installing a bunch of software on your PC. Of course they should, though you can image that such 'consent' may well be tucked away in a long and confusing End User License Agreement (EULA) full of legalese that nobody will read. Naturally, that is no defence, but is it too much to expect companies to play fairly? Most users just tick the box and click Next.

It seems Sony-BMG's antics could land them in some digital poo. There is already a legal precedent for punishing companies that install spyware without user consent. A US District Judge ruled that DirectRevenue could be sued on trespass, Illinois consumer fraud, negligence, and computer tampering grounds for that very offence.

There is even a specific law in California that says a company may not "induce" anyone to "install a software component" by claiming installation is necessary to "open, view or play a particular type of content." Gosh, that sounds awfully like the Van Zant CD, which installs an in-built music player (and associated 'copy-protection spyware') and prevents the user from playing the disc in Media Player, WinAmp or any other software.

Presumably the legal eagles at Green Welling would have to prove loss of productivity or some specific loss in order to claim damages, so if your PC is fubar as a result of this malware, you might want to give them a call.

I am the Law

But wait, the best is yet to come. Declan McCullagh, CNET's chief political correspondent, has done some research and says that circumventing the XCP-Aurora copy protection would put a user in violation of that genius piece of legislation, the infamous Digital Millennium Copyright Act (DMCA). Section 1201 specifically prohibits "circumvention" of anticopying technology. Tim Wu, who teaches copyright law at Columbia University said, "I think it's pretty clear that circumventing Sony's controls violates the DMCA." If you get caught and prosecuted, punishments include civil fines and computer confiscations, and may result in a criminal record.


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