No christmas for Sony!

[kingandy]

In a move that would no doubt make stsquad proud, I have been recapping on that whole Sony-BMG "rootkit" fiasco.  Don't tell me you missed it?  It was on Radio One Newsbeat^[1], even I heard about it.  Well, in a demonstration of the power of BLOGOSPHERE 1, some geek in an attic stumbled upon a number of secret hidden files installed by his Sony music CDs and opened a Pandora's box of troubles for Sony's PR department.  The rest, as they say, is history.^[2]

Well, no, it isn't history quite yet, as several wronged parties including the State Of Texas have filed legal proceedings against the multinational conglomeration.  But you can read more about it at the aforelinked Anti-Customer Technology Timeline.

I mention this here because I found the ramifications of the infesting^[3] software's End-User License Agreement quite funny.  That's right, by inserting your CD into your PC and thereby installing this piece of malware that you neither asked for nor are aware of, you are agreeing to the terms of a 3,000 word EULA.  But what does that actually mean?

If your house gets burgled, you have to delete all your music.
If you move out of the country, you have to delete all your music.
If you file for bankruptcy, you have to delete all your music.

BEHOLD!



[1] To quote Bart Allen, "What?  You hear it ... first."
[2] Originally this paragraph involved use of the word "infested", but due to various reworkings it has regrettably had to be let go.
[3] Oh, there it is!  Nice to see it's still getting work.

Comments

[spodula.livejournal.com]

I'm not sure were people get this idea.
Most Shrinkwrapped EULAs are unfortunately quite legaly enforcable normally.
They have been upheld in a number of cases both here and in the US.
(I would have to look them up, but the Blizzard v BNETD case immediately comes to mind)
As with any contract, there may be parts which are legally held to be unenforcable.

There is a bit more of a problem here, because Sony seems to be trying to apply a EULA to an area which is normally covered by copyright law rather than Contract law. They are trying to imply that the music is Licensed to you rather than sold for your personal use, and *that* is one stretch the courts havent gotten around to making yet (As far as i am aware).
They are basically trying to give themselves additional rights on top of the rights provided by Copyright law.

They are also trying to apply a contract that a large number of consumers have no chance of ever even knowing exists. Even in this day and age, most people still dont play music on their computers. I suspect if this comes up in court, the Judges will take a bit of dim view of this.
If this EULA is found to be unenforcable, this is likely to be the the reason.

[arwel.livejournal.com]

"I'm not sure were people get this idea."
From a lawyer.

They are also trying to apply a contract that a large number of consumers have no chance of ever even knowing exists.

That's the issue I believe.

[spodula.livejournal.com]

"I'm not sure were people get this idea."
From a lawyer.

Yes, your correct, there is no *English* precident for the legality of SW licenses, the only one i can find that comes close is

Beta Computers (Europe) Ltd v Adobe Systems (Europe)

which the judge states:
(2) the interests of the industry as a whole required that effect be given to the software licence conditions if possible;

However, there is no precident for the unenforcability of them either.
The person I have asked (who is one of the proofreaders of Copinger & Skone James on Copyright) Thinks that is it very unlikely that many of them will be struck down as totally unenforcable, and only in very specific cases. Even the Sony case is not likely to be totally unenforcable in this country.

As far as the US is concerned, this issue is pretty much decided.
Cos i dont have access to the US version of Westlaw, I can find these examples on the internet: The Blizzard v BNETD case for a start.
ProCD v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)
Hill v. Gateway 2000, 105 F.3d 1147 (7th Cir. 1997)
Mortenson v. Timberline, 970 P.2d 803 (Wash. Ct. App. 1999)
Brower v. Gateway 2000, Inc. (1998 NY App. Div. Lexis 8872 (13 August 1998).

[spodula.livejournal.com]

(Addition: But some of the more stupid terms are unlikely to survive, Theft, Moving country, ect)

[kingandy]

Yeah, I strongly suspect that those are the sort of terms that are only there in case they're needed, rather than to be enforced in every case. Standard practice, it seems, is to close every possible loophole or technicality that could possibly be used by somebody with malicious intent ("Honest guvnor, it was stolen, and this large catalogue of copies is purely for personal use!"). They're certainly not going to check up on everybody who leaves the country after buying their CDs, and indeed, how would they? (Though I'm sure Alex would say something about how Big Brother is tracking you through your debit cards...)

[arwel.livejournal.com]

As far as I've been made aware there has yet been a test case under English law regarding EULAs in shrink wrapped products. I imagine that there will be one soon enough. Wikipedia mentions that the state of the US rulings regarding them is unclear, though I can't be arsed finding out anything more about the US rulings.

[spodula.livejournal.com]

As far as I've been made aware there has yet been a test case under English law regarding EULAs in shrink wrapped products. I imagine that there will be one soon enough. Wikipedia mentions that the state of the US rulings regarding them is unclear, though I can't be arsed finding out anything more about the US rulings.

I cant find any more UK rulings, however according to my source, the EULA in question would have to fail the "Unreasonableness" test before it became invalid. I am not a lawyer, so i dont know how this works.

However it is expected that the process for the new IP act due next year will Specifically mention them and solve the issue once and for all. Probably in favor of EULA validity.

Never the less, the original point stands. While there is no test case as yet, the probability is that they will be found to be valid subject to the unreasonableness test.

(IP, I hate that term, it usually been written by someone who doesnt really understand, or a Lawyer deliberately trying to obscure the issue (EG, SCO))

As for the US, i have been told that EULAs are valid there, however, although Sweet and Maxwell are US owned, most of the legally trained people here only have a passing knowledge of US work and rely on our Collegues in the US for advice on things like that, so its entirely possible there just pushing the corperate line.

(The west group, another Thomson subsidurary, tried to persuade the US congress to pass laws to allow the copyrighting of Databases, even if they contained publically available information. Fortunately they failed)

However, they were able to give Citations backing this claim up.
I'm interested now and its a friday so i cant be arsed doing real work. I will investigate them.

[kingandy]

Yeah, I suspect either somebody thought they could take liberties since they were technically selling software with a soundtrack instead of actual music, or it's standard Sony software policy and nobody thought it through. (Never assume malice where incompetence is a possibility.)