Rare

As in it's oh-so-bloody-rare when I call things accurately, but guess what? I GOT ONE RIGHT!

Lawyers are preparing themselves for a little of that Class Action bizness against Sony BMG.

Sony rightly came under fire last week from programmers and Internet users for injecting an undetectable copy-prevention utility into Microsoft Windows when certain CDs are inserted.

Now the lawyers are taking aim, too. Robert Green, a partner at the San Francisco firm of Green Welling, says he's readying a class action lawsuit against Sony.

"We're still investigating the case and talking to different people about what happened to them," Green said on Friday. He plans to argue that under California law, if you buy a copy-protected CD from a music store, you should be informed that a spyware-like utility will be implanted on your hard drive.

{...}Still, it may be too late for the entertainment giant to fend off the plaintiff's bar. One recent court case in Illinois, Soleto v. DirectRevenue, sets a nonbinding precedent that lawyers expect to be invoked against Sony.

In that case, DirectRevenue was sued for installing spyware on Windows computers without obtaining proper authorization from a user. U.S. District Judge Robert Gettleman said the company could be sued on trespass, Illinois consumer fraud, negligence, and computer tampering grounds.

Then there's a California spyware-related law 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."

Translation: Sony could be in double trouble. Its Windows software is hardly necessary to play music--the disc works just fine on a Macintosh or in an old-fashioned CD player.{...}

But wait, it gets better. It turns out the average joe user might be violating the DMCA (Digital Millenium Copyright Act) when they try to remove Sony's Rootkit from their machine:

{...}In a bizarre twist, though, it's not only Sony that could be facing a legal migraine. So could anyone who tries to rid their computer of Sony's hidden anticopying program.

That's because of Section 1201 of the Digital Millennium Copyright Act, which bans the "circumvention" of anticopying technology.

"I think it's pretty clear that circumventing Sony's controls violates the DMCA," says Tim Wu, a Columbia University professor who teaches copyright law. {...}

Wu noted that one possible reprieve might come from last year's ruling from a federal appeals court in a case dealing with garage door openers--it said no copyright violations were taking place, so no DMCA violation occurred. Then again, another federal appeals court objected to bypassing anticopying technology used in DVDs, which is probably a closer analogy. {...}

This whole situation, to put it mildly, is fucked up.

You have to love how Sony's spinning it, too.

{...}After taking issue with anyone using the terms "spyware, malware or rootkit," Thomas Hesse, President of Sony's Global Digital Business, literally says: "Most people, I think, don't even know what a rootkit is, so why should they care about it?"{...}

{my emphasis}

I believe the Brits would call that "cheek."

Posted by Kathy at November 8, 2005 11:46 AM | TrackBack