Friday, December 30, 2005
High level analysis of settlement
Personally, I have a lot more faith in the EFF than I do in the attorneys in NY that are asking to be named lead class counsel. After all, in many class action lawsuits, it appears to me that the attorneys ostensibly representing the class plaintiffs are really primarily representing themselves, with the result that they are often the first, and sometimes only, people who actually get paid.
The EFF on the other hand has been involved as a consumer group in this area at least since Mike Godwin was their attorney and one of their only employees almost 15 years ago when I first met him in person at a BBS (Bulletin Boarding System) convention in Colorado Springs. Shows how both the technology and the EFF have progressed since then.
In any case, I think that the addition of the EFF in the proposed settlement is a pretty good indication that this is probably about as good a settlement as can be expected. Yes, Sony is going to escape with their assets intact. But apparently, they are committing themselves to not utilizing DRM for the next two years - and that is the sort of thing that the EFF would be asking for, and not the putative class action counsel.
As I suggested at Freedom to Tinker, this may end up being taught in Business Schools as how to respond to this sort of public relations disaster. After several false starts, management said make the issue go away, and they are doing that. They are now putting the fiasco behind them as quickly as they can.
Finally, in conjunction with the previous point, it should be remembered that Sony is a Japanese company. Getting into this mess in the first place is probably partially a result of this. Ditto for the initial false starts in addressing the matter. But then when it became apparent to top management that something needed to be done, word came down from the top to make it go away, and it is going away. The Japanese don't like litigation, and, as a result, in many cases appear much quicker to settle than comparable U.S. companies.
Thursday, December 29, 2005
"Sony agreed to stop production of these flawed and ineffective DRM technologies,” noted EFF Staff Attorney Kurt Opsahl. “We hope that other record labels will learn from Sony’s hard experience and focus more on the carrot of quality music and less on the stick of copy protection.”
Electronic Frontier Foundation (EFF) joined in this preliminary settlement agreement with Sony BMG this week to settle several class action lawsuits filed due to Sony's use of flawed and overreaching computer program in millions of music CDs sold to the public. The proposed terms of settlement have been presented to the court for preliminary approval and will likely be considered in a hearing set for January 6, 2005 in federal court in New York City.'
The settlement will put an end to the 20-plus cases filed by consumers against Sony since November. It will also resolve the lawsuit filed by the [EFF]"
Sunday, December 25, 2005
Remember those words? They’re true. Most people didn’t know what a rootkit was. But Sony-BMG gave us all an excellent education on rootkits, spyware, and Digital Rights Management.'
Saturday, December 24, 2005
Friday, December 23, 2005
Thursday, December 22, 2005
Current litigation against Sony BMG
Nov. 14 - NY Class Action Suit (complaint).
Nov. 22 - EFF Files Class Action Lawsuit Against Sony BMG
Nov. 22 - CNET News: Texas sues Sony BMG over alleged spyware
Nov. 22 - Texas AG complaint against Sony BMG
Nov. 22 - EFF California class action complaint against Sony BMG
Nov. 28 - SONYSUIT.COM: Oklahoma class action suit - class action complaint.
Nov. 28 - NY AG Spitzer investigating Sony BMG
Dec. 1 - Private Wash. D.C. suit filed on behalf of the general public of the capital also Private D.C. suit filed against Sony
Dec. 12 - Ill. AG investigating Sony BMG
Dec. 22 - Texas AG Expands Lawsuit Against Sony BMG to include SunnComm / Media Max; Texas Attorney General: SONY BMG Spyware (November 2005)
Wednesday, December 21, 2005
Friday, December 16, 2005
Thursday, December 15, 2005
First, SunnComm had two patent applications assigned to it (one abandoned), and two others with the same inventors (Eric Vanderwater and Peter Jacobs, both of the Phoenix area) unassigned:
US 2004-0103115 - 10/304,259
US 2004-0103044 - 10/412,453
US 2005-0278256 - 10/868,576
Final rejection mailed 10/24/05
US 2005-0177516 - 10/773,686
Non-final office action mailed 6/15/05
(which means that it is abandoned but can be revived).
First 4 Internet, LTD had two published applications assigned to it:
The US 2005-0223240 A1 application appears to be a US prosecution of an WO 2004-109681 A3 / GB 2402802 A European Patent Office (EPO) application.
Note that I haven’t had a chance to read these patent applications, nor have I looked to see if either of the two SunnComm inventors had other patents or patent applications.
Wednesday, December 14, 2005
"Perfect Placement - MediaMax presents the record labels and music producers with unparalleled targeted marketing opportunities through a feature called Perfect Placement. This unique feature centrally serves up dynamic promotional content controlled by the record label to reserved spaces located throughout the MediaMax interface while a user is enjoying their CD on the computer. Imagine an artist's album is coming out and the record company has the ability to announce this event to all those playing the artist's previously released album in their computer."In short, the software they automatically install from music CDs containing their DRM software monitors what someone is playing, communicates this to a central site, receives advertisements in response to this information, and displays the ads to the user.
The monitoring and communicating is clearly spyware, whereas the display of the unwanted advertisements is adware. All, apparently done without explicit permission from the user (since MediaMax is apparently installed regardless of acceptance of, for example, an attached EULA).
Obviously though, even if the installation were not automatic, regardless of EULA acceptance, it would probably still be adware and spyware since it is not explicitly disclosed in the EULA. Rather, at least the Sony EULA, merely talks about a small software program that is presumably being installed for DRM purposes. This is clearly not DRM. It goes much beyond that.
Tuesday, December 13, 2005
Monday, December 12, 2005
"MediaMax Technology Corporation, a Nevada corporation is in the business of providing copy control technology to the music and entertainment industry. This industry is generally unpopular with consumers because of their ability to make inexpensive unauthorized copies of entertainment software. The proliferation of illicit copying has resulted in perhaps billions of dollars of lost revenues for industry-wide content owners. The latest data available from the MPAA estimates that the U.S. motion picture industry lost in excess of $3.5 billion in 2003 due to packaged media piracy. Music industry unit ("CD") sales have been falling approximately 10% year-over-year for the past four years, according to the International Federation of Phonographic Industries ("IFPI"). In addition, the International Intellectual Property Alliance ("IIPA") estimated that copyright piracy, not including Internet piracy, around the world inflicts $20-$22 billion in annual losses to the U.S. copyright industries. As technology has become more advanced and efficient, illegal copying activity has increased because of its ease and simplicity."This, of course, explains why Sony has included DRM software on many of its recent albums.
"On November 2, 2005, we entered into an Employment Agreement with Kevin Clement, an executive at Sony BMG Music Entertainment, to join our company as Chief Executive Officer and President and as a member of our Board of Directors as of November 21, 2005. "Which helps explain why Sony BMG picked MediaMax / SunnComm for DRM software.
"We have an Exclusive Distribution Agreement with SunnComm to distribute, market, advertise, and sublicense the SunnComm Products throughout the world. The SunnComm Product that we will begin marketing is a content protection control technology called Media Max M4. The market for Media Max are all major and independent record companies along with their artists which may be concerned over lost revenues to illegal copying. Management believes that approximately 2 billion music CD's are sold annually worldwide. SunnComm currently has an agreement with a major record label and manufacturer to provide the Media Max M4 product upon their demand."This explains some of the relationship between Media Max and SunnComm. Interesting though that they don't point out that the "major record label" is presumably Sony BMG, esp. given that by this time, Sony BMG must have already shipped a number of SunnComm protected CDs AND they had hired Kevin Clement away from Sony.
"The License Management Technology, "LMT", provides a security platform that is able to monitor and control activity on all CD/DVD drives or burners when it determines that content protection could be compromised. The software is designed to be completely invisible to users, programs and system components. CDs created with the LMT are 100% compatible with standard audio CDs; therefore, playability on any regular CD or DVD device is guaranteed."And that is one of the big problems with the SunnComm DRM code - that it is so invisible that the user doesn't even know that it is installed on his computer, esp. since it installs regardless of whether the Sony EULA is agreed to or not.
"When the disc is inserted, the auto launch feature will activate the MediaMax M4 program on the second session, which feature is called launchcd.exe. Depending on the DRM license implementation, this program is either activated directly or through another program called autorun.exe. Launched first determines if the LMT Software controls are installed on the computer. If not, or if the disc concerned contains a newer version, it will copy the controls from the disc concerned and will install same. The LMT Software controls consist of two dynamic link libraries. The controls are used by the MediaMax M4 application (which is browser based).Media Max is essentially admitting here that the SunnComm code installs itself regardless of whether or not the computer user accepts the EULA, that it ties up resources by scanning running processes, and that the code tries very hard to hide itself from the user.
Whenever the LMT Software controls are activated, (i.e. when the second session software is executed), the LMT Software controls will first determine if the content protection device driver is installed on the system. If not, it will extract it from the main LMT Software into a separate file and install it as a standard Windows device driver.
The driver first locates all CDROM devices installed on the computer. Then it will poll each device once per second to determine if a new disc has been inserted. If so, it will read various elements of the disc to determine if it is a MediaMax M4 disc. It is important to note that the driver is completely idle (without any chance to affect the computer), unless an actual MediaMax M4 disc has been detected. Once detected, the driver will insert itself into the communication stream for that drive to prevent any non-authorized activities. While allowing the computer to access the second session without any limitations, the driver will interfere when applications try to access the first session.
When the driver detects that the MediaMax M4 disc is ejected, it will remove itself from the communication stream for that drive and switch back to the polling mode. Several enhancements are currently under development to make it very difficult to locate and/or remove the device drivers."
"We believe that today's market prefers playability over protection which its MediaMax M4 technology provides because it is compliant with the CD Redbook Standard."Which business plan got us here, where MediaMax / SunnComm DRM code is automatically installed on computers regardless of whether or not the accompanying EULA is accepted.
1. You have to get your software installed, even though the user doesn’t want it.
2. Once your software is installed, you have to keep it from being uninstalled, even though the user wants it gone.
These are the same two technical problems that spyware designers face.
People who face the same technical problems tends to find the same technical solutions. How do you get software installed against the user’s wishes? You mislead the user about what is being installed, or about the consequences of installation. Or you install without getting permission at all. How do you keep software from being uninstalled? You don’t provide an uninstaller. Or you provide an uninstaller that doesn’t really uninstall the whole program. Or you try to cloak the software so the user doesn’t even know it’s there."
Saturday, December 10, 2005
Friday, December 09, 2005
Thursday, December 08, 2005
And the complaints are being heard at the Justice Dept. "It's fair to say that we're aware of consumer concerns on the installation of this software on Sony products," says Justice spokesman Paul Bresson, though he declined comment on the number of Sony-related complaints the agency has received. "For now we're going to wait for more facts to become available and then evaluate what, if any, action is appropriate."
The company said Tuesday it brought the issue up with the MediaMax software maker, SunnComm Technologies Inc., which has developed a software patch to fix the problem."
Wednesday, December 07, 2005
Monday, December 05, 2005
Sunday, December 04, 2005
Another list of infected CDs
20137-(HED) PE-4 Song Sampler
439-40 Below Summer-The Mourning After
20149-Afterdark-New York City
324-ALEJANDRA GUZMAN-LIPSTICK (VERSION INTERNACIONAL)
20237-Alicia Keys-Unplugged - Premium
20238-Alicia Keys-Unplugged - Standard
20247-Alicia Keys-Unplugged - Premium Canadian Release
20248-Alicia Keys-Unplugged - Standard Canadian Release
20195-Amici forever-Defined - Canadian Release
326-Ana Victoria-Love Is All
202-Ana Victoria-3 Song Sampler
208-Ana Victoria-5 Song Sampler
10083-Angie Stone-Stone Love
268-Anthony Hamilton-Comin' From Where I'm From
20268-Anthony Hamilton-Ain't Nobody Worryin'
418-Aretha Franklin-So Damn Happy
248-Automatic Black-Automatic Black - Album Sampler
203-Automatic Black-3 Song Sampler
819-Avril Lavigne-Under My Skin
20117-Babyface-A Love Story
249-Babyface-Babyface 5 Song Sampler
20181-Babyface-Grown & Sexy
20186-Babyface-4 Song Sampler
20204-Babyface-Grown & Sexy - Canadian Release
20189-Backstreet Boys-Never Gone - Canadian Release
20183-Backstreet Boys-Never Gone
250-Bebel Gilberto-Bebel Gilberto
360-Ben Kweller-On My Way
20208-Black Rebel Motorcycle Club-Howl
20171-Blitzkrieg Pop-T. Raumschmiere
255-Boyd Tinsley-Boyd Tinsley
20082-Boyz II Men-Throwback
275-Brand New-Deja Entendu
20244-Brian Wilson-What I Really Want For Christmas
20258-Britney Spears-Remixed">Britney Spears - Remixed
20262-Britney Spears-Remixed - Canadian Release
309-Britney Spears-In The Zone
20057-CARTEL DE SANTA-VOL. II
420-Cassidy-Split Personality (explicit)
20205-Cassidy-I'm A Hustla (Explicit) - Canadian Release
20191-Cassidy-I'm a Hustla (explicit)
20192-Cassidy-I'm a Hustla (edited)
261-Cee Lo Green-Cee Lo Green...Is The Soul Machine
20196-Charlie Wilson-5 Song Sampler
20223-Charlie Wilson-Charlie Last Name Wilson
20029-Charlotte Martin-On Your Shore
20264-Chris Brown-Chris Brown
10071-Christopher Lawrence-All Or Nothing
735-Citizen Cope-Under The Sun
20135-Clay Aiken-Merry Christmas With Love
20190-Cook Dixon Young-Volume One
20210-Cuban Link-Chain Reaction (Explicit)
20144-Cuban Link-Chain Reaction - Demo
321-da Brat-Limelite Luv & Niteclubz (Edited)
322-da Brat-Limelite Luv n Niteclubz (Explicit)
20172-Dave Matthews Band-Stand Up - Canadian Release
20161-Dave Matthews Band-Stand Up
20211-David Gray-Life In Slow Motion
20232-David Gray-Life In Slow Motion - Canadian Release
357-Death Threat-Now Here Fast!
320-Dido-Life For Rent
20273-Donell Jones-Journey Of A Gemini Sampler
237-Donell Jones-Album Sampler
20241-Donovan Banzana-Life's Code Of Ethics
267-Elvis Presley-Close Up Sampler
325-Elvis Presley-Live In Texas 1972
454-Elvis Presley-Unreleased Movie Gems
455-Elvis Presley-Unreleased Stereo Masters From The `50s
437-Elvis Presley-The Magic Of Nashville
286-ERIK RUBIN-ERIK RUBIN
311-Eve6-It's All In Your Head
20222-FlamBey-The Flamerous Life
20187-Foo Fighters-7 Song Sampler
20178-Foo Fighters-In Your Honor (Electric)
20179-Foo Fighters-In Your Honor (Acoustic)"
20044-Frequent Flyer-Rio De Janeiro
353-From Zero-My So-called Life
262-Gavin DeGraw-Chariot Album Sampler
299-GOB-Foot In Mouth Disease
443-Heather Headley-this is who I am
20018-Hot Import Nights-Driving Beats
435-Ike and Tina Turner-The Early Sessions
20239-Imogen Heap-Speak for Yourself
438-In Essence-The Master Plan
305-J-Kwon-Hood Hop (Edited)
306-J-Kwon-Hood Hop (Explicit)
20074-J-Zone-A Job Aint Nuthin but Work
372-Jacksoul-PROMO - HMV value add
20260-Jamie Foxx-Unpredictable - THE SAMPLER
20240-Jeff Bates-Good People
20166-Jim Brickman-Grace - Canadian Release
20158-Jody Sticker-5 Minutes
20182-Judd And Maggie-Subjects
20132-Kalan Porter-219 Days
20167-Kasabian-Kasabian - Canadian Release
20157-Keith Anderson-Three Chord Country And American Rock & Roll
20145-Ken Oak-Half Step Down
20113-Kenny G-4 Song Sampler
476-Kings Of Leon-Youth And Young Manhood
20134-Kings Of Leon-Aha Shake Heartbreak
20169-Kings Of Leon-Aha Shake Heartbreak - Canadian Release
292-LA 5a. ESTACION-FLORES DE ALQUILER
20272-Leilani Jaster-Leilani Jaster
362-Len Doolin-Once In A Lifetime
20198-Leo Kottke/Mike Gordon-Sixty Six Steps
20217-Living Things-Ahead Of The Lions
20152-Longwave-There's A Fire
20126-Los Razos-La Raza Anda Acelrada (Explicit)
354-Manmohan Waris-Nachiye Majajne
20106-Mario-Here I Go Again
20229-Maroon 5-Maroon 5 Live - Friday The 13th - Canadian Release
20225-Maroon 5-Live: Friday the 13th
20263-Melissa O'Neil-Melissa O'Neil - Canadian Release
20128-Moderato-Detector De Metales
310-My Morning Jacket-it still moves
20216-My Morning Jacket-Z
20174-Nathaniel Kimble-Better Get Ready
20219-Nikka Costa-Can'tneverdidnothin' - Australian Release
298-Nodesha-Get It While It`s Hot
20125-Other-Please Detail in Question
20214-Our Lady Peace-Healthy In Paranoid Times - Candadian Release
278-Out Of Your Mouth-Draghdad
816-PANTEON ROCOCO-TRES VECES TRES
20220-Paul van Dyk-Politics of Dancing 2
366-Pedro Vargas-Pedro Vargas Canta a José Alfredo Jiménez
20024-Peggy Scott-Adams-God Can And He Will
20136-Peter Cetera-You Just Gotta Love Christmas
20147-Play-N-Skillz-The Album Before The Album
20025-Projet Orange-4-Track Sampler
20227-Quenga-Quenga - U.S. and New Zealand Release
20194-Raheem DeVaughn-The Love Experience
20014-Ray Charles-Genius Loves Company
20193-Richard Hawley-Cole's Corner
20197-Röyksopp-The Understanding - Australian & New Zealand Release
20030-Sak Pasé Presents Wyclef Jean-Welcome To Haiti Creole 101
20245-Santana-All That I Am
20256-Santana-All That I Am - Canadian Release
20207-Sarah McLachlan-Bloom (Album Remix)
20138-Sarah McLachlan-Afterglow Live
20249-Say Anything-Say Anything...is a Real Boy
20250-Say Anything-Say Anything...was a Real Boy
20251-Say Anything-Say Anything...is a Real Boy - Canadian Release
20252-Say Anything-Say Anything...was a Real Boy - Canadian Release
20257-Shane Capone-Heated Speech
20148-Shawn Desman-Sampler - Canadian Release
20163-Shawn Desman-Back For More - Canadian Release
20120-Shawn Kane-Full Version Sampler
20094-Silvertide-Show And Tell (Explicit)
20095-Silvertide-Show And Tell (Edited)
457-Skrape-Up The Dose
20173-Sloan-A Sides Win: Singles 1992 - 2005 - Canadian Release
20259-Smitty-Life Of A Troubled Child (Album Advance)
20221-Soundtrack-Masters of Horror Soundtrack Sampler
20159-Soundtrack-XXX: State of the Union (explicit)
20160-Soundtrack-XXX: State of the Union (edited)
20165-Sountrack-XXX: State Of The Union (Explicit) - Canadian Release
475-South-With The Tides
415-Spymob-Sitting Around Keeping Score
20201-StellaStarr*-4 Song Sampler
20231-Stellastarr*-Harmonies For The Haunted - Canadian Release
20235-Stellastarr*-Harmonies For The Haunted
356-Steve Myland-Not Every Rhyme Has A Reason
371-Strawberry Shortcake-Premium Giveaway
20255-Suburban Tragedy-Tonight We'll Watch The Sun Come Up
20224-Syleena Johnson-Chapter 3: The Flesh
20228-Syleena Johnson-Chapter 3: The Flesh - Canadian Release
20266-T-Pain-Rappa Ternt Sanga - Explicit
20267-T-Pain-Rappa Ternt Sanga - Edited
20176-T. Raumschmiere-Blitzkrieg Pop
20177-Tazz Calhoun-It's All Good
204-Tears For Fears-3-Song Sampler
288-Tears For Fears-Everybody Loves A Happy Ending
276-Tha Rayne-Didn`t You Know
20202-The Appearance-Are We Not Entertained?
10073-The Calling-Two Copy
20168-The Chieftains-Live From Dublin; A Tribute To Derek Bell - Canadian Release
20143-The Chietains-Live From Dublin; A Tribute To Derek Bell
318-The Crystal Method-Legion of Boom
440-The Neptunes-The Neptunes Present...Clones
20142-The Residents-Animal Lover
432-The Sound Of Urchin-The Diamond
406-The Strokes-Album Advance
20269-The Strokes-First Impressions Of Earth
20213-The Trews-Den of Thieves - Canadian Release
263-Theo-Chemistry...You And Me
365-Tita & Sãozinha-Papá
802-TOÑITA-LAS CUENTAS CLARAS
20133-UGK-Jive Records Presents: UGK - Chopped & Screwed
20080-VARIOS-MISION S.O.S.(AVENTURA Y AMOR)
20041-Various-Relaxation: A Windham Hill Colletion
20027-Various-Urban International Sampler
245-Various-Arista Fall 2003 Sampler Promo CD
20146-Various-Down South Party Mix!
20212-Various-Elizabethtown - Songs From the Brown Hotel
20218-Various-Canadian Idols: High Notes - Canadian Release
20209-Various-2005 NARM Sampler
20226-Various-So Amazing An All Star Tribute To Luther Vandross
20230-Various-So Amazing An All-Star Tribute To Luther Vandross - Canadian Release
20242-Various-Masters Of Horror
20234-Various-Masters of Horror Radio Sampler
343-Various Artists-Music Snapshot of LG Action Sports Championship
824-Various Artists-Majestic II
828-Velvet Revolver-Contraband (Explicit)
822-Velvet Revolver-Contraband (Edited)
20130-Velvet Revolver-Bonus Material
277-Vue-Down For Whatever
20184-Wakefield-What Side Are You On? (explicit)
20185-Wakefield-Which Side Are You On? (edited)
363-Whitney Houston-One Wish
447-Whitney Houston-Try It On My Own
441-Wyclef Jean-The Preacher`s Son
20089-Yaga Y Makie-Clase Aparte
10077-Yogacharya Swami Kripalvanandji-Premdhara 3 & 4 - U.S. & India Release
20154-Yogacharya Swami Kripalvanandji-Premdhara 5 & 6 - U.S. & India Release
20253-Yogacharya Swami Kripalvanandji-Premdhara 7 & 8 - U.S. & India Release
20270-YoungBloodZ-Ev'rybody Know Me (Explicit)
20271-YoungBloodZ-Ev'rybody Know Me (Edited)
20086-Yung Wun-The Dirtiest Thirstiest (Explicit)
20087-Yung Wun-The Dirtiest Thirstiest (Edited)