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Calif. Lawsuit Targets Sony

A class-action lawsuit has been filed on behalf of California consumers who may have been harmed by anti-piracy software installed by some Sony music CDs. A second, nationwide class-action lawsuit is expected to be filed against Sony in a New York court on Wednesday seeking relief for all U.S. consumers who have purchased any of the 20 music CDs in question.

Experts say the Sony CDs use virus-like techniques to install digital rights management software on computers. Windows users cannot listen to the protected CDs on their computers without first installing the software, which hides itself on the users' system and cannot be uninstalled by conventional removal methods.

The California lawsuit, filed Nov. 1 in Superior Court for the County of Los Angeles by Vernon, Calif., attorney Alan Himmelfarb, asks the court to prevent Sony from selling additional CDs protected by the anti-piracy software, and seeks monetary damages for California consumers who purchased them.

The suit alleges that Sony's software violates at least three California statutes, including the "Consumer Legal Remedies Act," which governs unfair and/or deceptive trade acts; and the "Consumer Protection against Computer Spyware Act," which prohibits -- among other things -- software that takes control over the user's computer or misrepresents the user's ability or right to uninstall the program. The suit also alleges that Sony's actions violate the California Unfair Competition law, which allows public prosecutors and private citizens to file lawsuits to protect businesses and consumers from unfair business practices.

Himmelfarb was on a plane at the time of this writing and could not be reached for comment.  But a court-stamped copy of the lawsuit he filed is online here (PDF).

Scott Kamber, an attorney in New York, said he plans on Wednesday to file class-action suits targeting Sony under both New York consumer protection statutes and a federal criminal statute that allows civil actions.

"This situation is particularly egregious and surprising from a company that should be familiar with concerns people have with programs crashing their Windows computers," Kamber said. "What Sony is saying with this software is that 'Our intellectual property is more deserving of protection than your intellectual property,' and Sony can't be allowed to get away with that."

Sony spokesman John McKay declined to comment on the suits.

I wouldn't be surprised if other lawyers and law firms around the country are also preparing to file similar suits.

As I wrote in a story last week, "Sony's move is the latest effort by the entertainment companies to rely on controversial 'digital rights management' (DRM) technologies to reverse a steady drop in sales that the industry attributes in large part to piracy facilitated by online music and movie file-sharing networks like Kazaa and Limewire."

Experts who studied the Sony program said it has a built-in file-cloaking feature that could also be used by attackers to hide viruses and other files on a user's computer, and that conventional means of removing the anti-piracy software renders the user's CD-Rom drive inoperable.

In response to public criticism over the invasiveness of the software, Sony last week made available on its Web site a "patch" that would prevent its software files from hiding on the user's system. But according to further research by a variety of security experts, that patch can lead to a crashed system and data loss.

By Brian Krebs  |  November 8, 2005; 6:35 PM ET
Categories:  From the Bunker , Piracy  
Save & Share:  Send E-mail   Facebook   Twitter   Digg   Yahoo Buzz   StumbleUpon   Technorati   Google Buzz   Previous: Google Phishing
Next: Sony's Attitude Has a History


Good article. Though the music industry claims that file sharing has decreased the sale of CDs, they offer no scientific proof. Two economists (Felix Oberholzer and Koleman Strumpf, March 2004, wrote a paper that file sharing did not result in lost CD sales. My belief, for the loss in CD sales is bad music.

Posted by: Steve | November 8, 2005 10:43 PM | Report abuse

being a user of many very large chat rooms i and many others are spreading the word fast about sony's criminal tactics to combat anti piracy .. i personally hope their asses get sued as many times as i have had hot dinners

also on a similar subject anyone thinking of buying a laptop please read this before doing so >>>>

Posted by: OutForJustice | November 9, 2005 5:51 AM | Report abuse

Additional thoughts. As a consequence of following links on this and other articles I ran across several blogs where people reported that DRM CD would not work with their CD drives. The users were then denied refunds when attempting to return these CDs. Also what happens to your PC when each music company installs its own DRM scheme. I bet some of these programs will unintentially conflict and the sneaky approach of Sony implies that the music companies may use DRM programs to disable a competitors program!!!

So not only does DRM make your PC unusable, you cannot even get a refund for this "defective" product. This type of negative customer experience will further reduce the sale of DRM CDs. Unfortunately, I do not think that the music industry considers DRM to be a loosing strategy

Posted by: Steve | November 9, 2005 12:50 PM | Report abuse

Ok, this is so peripheral to this present discussion, but really, OutForJustice needs to check out:

Or maybe if he has the requesite talent, he could open up his laptop and see for himself that nothing like that is there. (unless he really is a legitimate target of an ongoing investigation, but I digress)

It's bad enough when manufacturers like Sony pull a boneheaded move like this but trying to add fuel to the fire by posting bogus crap about keystroke loggers being embedded in new laptops only muddies the waters of the real issue that needs to be addressed here.

Posted by: SetFreebyTruth | November 9, 2005 3:53 PM | Report abuse

Even though, being on a Mac, I'm not really concerned by this hullablloo, I'm a potential victim of the DRM type that was used on some Celine Dion's "CDs" a while back: not only the discs would not play on Apple computers, but, even worse, they refused to be ejected from the slot-load players, requiring professional help to get the machine back in working order. You don't hear much about this problem any more, and it didn't get much notice from the public, since it "only" affected the "minority" ...
I've read about the "patch" Sony released (2 of them, actually, if I'm not mistaken). What strikes me there is that this so-called patch doesn't actually seem to remove the software, but only makes the invisible files visible. This, if true, is another mark of their utter disrespect for their PAYING customers--the ones least likely to use P2P networks ... Astounding !

Posted by: jacrav | November 9, 2005 5:16 PM | Report abuse

Now the Legalese Rootkit: Sony-BMG's EULA

Posted by: Steve | November 9, 2005 6:04 PM | Report abuse

Well folks there really is a solution to this mess, STOP BUYING CD'S FOR A MONTH OR TWO AND THERE WILL BE NO SONY MUSIC BUSINESS ANYMORE. The only way to fight people like this is to boycott them. You really have no other recourse. Of course you will hurt the artists also but they will survive, the fools at the record producers will not. It's time the teach them that while they may have rights we have rights too.

Posted by: Ted McCarty | November 9, 2005 8:08 PM | Report abuse

I can't understand why none of the mainstream media has covered this mess. Sure seems newsworthy to me! A lot of people who have the DRM on their computers are just music fans with little computer savvy. They need to know! I have "nudged" both Fox News and CNN about it via email. Maybe a few more people should do likewise.

Posted by: Woody | November 9, 2005 8:15 PM | Report abuse

Woody --

I'm trying not to be, but I can't help but be offended. What am I? Chopped liver? Is not the mainstream media?

Anyway, thanks for reading and for sharing your thoughts.

Posted by: Brian Krebs | November 9, 2005 9:13 PM | Report abuse

Why are distributors like WalMart and Amazon continuing to carry these obviously defective products? Are they dying to be co-defendants in a class-action lawsuit?

Seems like shareholders of these companies ought to be asking some pointed questions...

Posted by: Tim Howland | November 9, 2005 9:13 PM | Report abuse

What is concerning to me is the fact that s. 1201 of the DMCA could arguably prohibit 'victims' from 1) figuring out what Sony installs on my computer; and 2) how to get rid of it. Perhaps this is a good time for Congress to take a closer look at s.1201 anti circumvention provision of the DMCA.

Posted by: Dan B | November 10, 2005 1:26 AM | Report abuse

Not just Sony/BMG - EMI Music also uses the insidious Copy Control "technology". Screw these labels, screw them right up their puckered rear end regions...

Posted by: Fedge | November 10, 2005 1:48 AM | Report abuse

Disconnected a little, but my choice of products when shopping attempts to be guided by ethics, or by a company's previous conduct. In the area of games consoles, I always favoured the Playstation over the XBox because of the Microsoft antitrust stuff, and the description of some of their tactics.

Now with this debacle, given a choice between the PS3 and the XBox 360, I doubt I'll go with Sony.

I know no company is perfect, but if one is obviously being devious, stuff 'em.

Posted by: Jeff | November 10, 2005 4:12 AM | Report abuse

Sign the online petition against Sony:

Posted by: Uri | November 10, 2005 5:35 AM | Report abuse

Another plausible explanation for part of the decrease in CD sales is that young folk spend their money on phones and phone calls rather than music.

Posted by: Damian Cugley | November 10, 2005 8:16 AM | Report abuse

Allegedly this trick won't work on Windows 64 and Windows Vista, but don't worry... Microsoft has already added the necessary hooks for applications to hide components from the user with Windows Media Player 9 and later, and this capability will be widely expanded in Longhorn/Vista.

Posted by: Windows Media Playa | November 10, 2005 9:19 AM | Report abuse

1. The copy protection/activation schemes are discussed in terms of protecting the poor corporation. What about the consumer? For example, suppose a program/music/video whatever uses DRM/activation and the company goes out of business or unilaterally decides to discontinue "support". The unfortunate customer is left with expensive and potentially unusable software/hardware.

2. Sony used a stealth technology. What happens if several companies use other DRM technologies and these technologies conflict causing a computer crash. It will be virtually impossible to figure out the cause of the crash. Attempting to trace the problem will be time consuming, expensive, may require reloading everything, and may result in lost data. If one is operating a business they could loss a lot of money because of a failed DRM implementation. I would also advocate that since Sony and the other companies are doing this to protect their profits and they cause a system crash that they be liable for the cost of repair. I realize that this would fly like a lead balloon.

3. The use of stealth technology implies a credibility gap, clearly the companies are attempting to hide what they are doing. If one is paranoid, it is not much of a logical leap to get to dirty tricks. What is to stop one DRM program disabling another DRM application?????

Posted by: Steve | November 10, 2005 9:40 AM | Report abuse

I don't know why every time I corrected a spelling error on my blog entry it duplicated the trackback entry here. Sorry about that folks. It's the only one that's there three times.

Posted by: Bryan | November 10, 2005 11:13 AM | Report abuse

Does anyone know for certain that if you install one of the Sony DRM CDs' software on your computer will it stop you from also copying *any* CD or just the one it came with? Will I still be able to copy an older CD (from say year 1998) or does it block it all together? If it is the later, that definitely goes against some legal rules. If it only blocks the new CD, that is a different story. Of course, not being able to un-install something that was hidden from you to begin with is just as unethical as they come.


Posted by: Sendai | November 10, 2005 12:29 PM | Report abuse

You can use the following GOOGLE query to find the titles of the Sony CD's with the DRM software:


of course, this is only the ones that Amazon is selling but should be a good place to start.

Posted by: Google-Query | November 10, 2005 12:41 PM | Report abuse

hi. if you dont want to install their software on your computer, turn off the "auto run" option, or hold shift after putting the CD in.

Posted by: to disable DRM | November 10, 2005 1:23 PM | Report abuse

Sony has officially made it safer to steal files over the net than to legally buy it!!

They are just attempting to keep an inflated market price that is not at a free market equilibrium point. I bought my 1st CD in 1995 for $14.00, all other technology based industries have reduced cost to compete (what was a computer worth then verse now?) They just have too much EMPIRE to feed and need to realize that anyone with a few thousand bucks can start a recording label and produce and market their own (or other's) content for much less. All they are protecting is a large marketing / production / distribution network that the internet can and has started to replace. My "Make / Buy" brake point cost is when the blank media + my opportunity cost (time and equipment deprecation) make it better to buy than make. At this point I would pay $4.00 to get a CD that I want with the artwork. I would still rip to my hard drive and use it where and how I want.

Bottom line, they are a dying old technology and they know it, but they are using their shear size and power to continue to breath. Death is near, look at General Motors!!

Posted by: Johnny Boy | November 10, 2005 1:35 PM | Report abuse

wow, having looked at the list of cd's containing the exploitable software, I think anyone who felt that those cd's were good enough to buy deserves a virus. Talk about some horrible music! :-)

Posted by: mac | November 10, 2005 1:36 PM | Report abuse

Thanks so much for covering this story and bringing it to wide attention. Companies such as Sony that resort to these tactics should be severely punished. We put other virus makers in jail, why would a big company be immune to the same rules.

I think its important to understand the root cause of what is going on here. What is the purpose? Is it supposed to prevent piracy? Do these new drivers prevent cd ripping, or is this a supposedly harmless test of a distribution system that will eventually become a DRM for cd's, where your computer will have to ask Sony for permission to play a cd.

Posted by: Mark | November 10, 2005 1:42 PM | Report abuse

I whole-heartedly agree that SonyBMG needs to experience a boycott, and I hope word gets out there enough that this happens. And a bunch of lawsuits sounds good to me too.

I wonder what effect this event will have on the relationship between Congress and the big media, which is the heart of the problem. As anyone who cares knows, Congress is entirely bought and paid for by these companies, on both sides of the aisle too. If the companies want legislation passed, Congress finds a way to make it happen. Thus we have the law that may allow Sony's current actions, and also an effectively permanent closure of the Public Domain. (Not many people know that virtually NO recordings are in the Public Domain, not even cylinders from the 1890's).

The only way that this relationship will change is if enough voters make enough trouble for congress members that they have to ignore their big-money friends. And that has to be a LOT of voters. I am pessimistic that this threshold can be crossed.

Posted by: james | November 10, 2005 2:02 PM | Report abuse

Dear Brian,

This is a question for you to check into related to this column.

Something got into my computer that prevents me using Toast when I have a second burner in my set-up

I am a Mac user in the classical music industry and I need to make copies of my own recordings, including the original super high fidelity 24/96 archive files which will only fit on a DVD.

I got Toast's new version 7 which does DVD audio but as soon as I installed it on my two burner set-up, any attempt to open 7 or any previous version of Toast locked up my computer.

I did not have to be trying to copy discs, discs did not have to be in the drive- just opening the any version of Toast to do anything gave me the spinning beachball of death.

I spent hours with their tech people.

The only way to prevent this lock up was to reboot with the 'extensions' off so that second burner could not be 'found'. Just disconnecting the second burner did not do any good. The 'extension' that controlled/reecognized the second burner could not be there.

If I cleaned off Toast and reinstalled it, on that reinstall I could use it once if I didn't close it first, but the next time I opened Toast I got the spinning beach ball of death no matter what I was trying to do in the program, including making a data disc of my hard drive files.

The problem was somewhere deep in the root level and only cleaning the drive and reinstalling Toast 6 on a different drive from the system restored the functionality.

I do not know who or what does this, but I do know it is 100% repeatable over and over and over again and effected every version of Toast, including 5 which does not use the same prefs, as soon as I installed 7 and for me that establishes a scientific fact.

I have a G5 dual and am running Panther 10.3.9 (I will have nothing to do with Spotlight!!!)

Posted by: Anonymous | November 10, 2005 2:25 PM | Report abuse

Regarding wether you can rip cds with DRM on your computer.You can use the use Sonys rootkit to circumvent its own DRM by using the rootkit to hide your ripping program so the DRM cant see it thus letting you rip.
Also does this mean sony can be sued for distributing a rootkit that circumvents DRM?? YOU CAN PUT $SYS$yourprogram.exe

Posted by: mapsilva | November 10, 2005 9:37 PM | Report abuse

The music industry's attempt to blame copying their music as the reason for lost sales. Though there is an impact, it is insignificant compared to the music industry's greed and pissing off all consumers whether they distribute music or not. The music & movie industry might have paid off our politicians under the table to support their greed and bad music, but ultimately, the consumer will win because we refuse to be dictated to.

They just don't get the big picture!

Posted by: Mic Nelson | November 11, 2005 6:06 AM | Report abuse

"What few people realize is that Sony uses another copy protection program, SunnComm's MediaMax, on other discs in their catalog"

Sony Shipping Spyware from SunnComm, Too
Saturday November 12, 2005 by J. Alex Halderman

Posted by: Anonymous | November 15, 2005 1:05 PM | Report abuse

"What few people realize is that Sony uses another copy protection program, SunnComm's MediaMax, on other discs in their catalog"

Sony Shipping Spyware from SunnComm, Too
Saturday November 12, 2005 by J. Alex Halderman

Posted by: almightyrecht | November 15, 2005 1:06 PM | Report abuse

I recieved a copy of Amerie "Touch" from a local radio station as a pomotional piece. I placed it in my CD drive. I can't recall the play by play however it asked if I wanted to install some player, I thought well this is a reputable company and clicked "Yes", and it totally locked up my system!! I eventually had to "COMPLETELY" recover my system which took days. I'm in college and I lost several important project files. Luckily for me, I did not lose everything because I've backed several of my files on CD weeks before, however I lost the most recent version of Thesis Project that I've been working on for six months. Needless to say I was "PISSED". I'm glad this has all come to the surface and I expect Sony to respond in an acceptable manner to this issue.

Posted by: Charene | November 18, 2005 12:40 AM | Report abuse

Does anyone know if there has been or will be a class action lawsuit against computer makers to make them provide restore CD's with the computers that they sell? I have an HP Pavilion laptop that got spyware on it that completely locks it up. I called HP and it costs me $125 to get the restore CD's from them because my laptop is out of warranty. I didn't get them in the first place so why should I pay for them now! Any help would be appreciated.

Posted by: Mike Christensen | January 2, 2006 7:11 PM | Report abuse

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