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Podcast Episode: Antitrust/Pro-Internet

EFFector - Volume 18, Issue 41 - EFF Files Class Action Lawsuit Against Sony BMG


EFFector - Volume 18, Issue 41 - EFF Files Class Action Lawsuit Against Sony BMG

EFFector       Vol. 18, No. 41       November 25, 2005

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 357th Issue of EFFector:

EFF Files Class Action Lawsuit Against Sony BMG

San Francisco - The Electronic Frontier Foundation (EFF), along with two leading national class action law firms, today filed a lawsuit against Sony BMG, demanding that the company repair the damage done by the First4Internet XCP and SunnComm MediaMax software it included on over 24 million music CDs.

EFF is pleased that Sony BMG has taken steps in acknowledging the security risks caused by the XCP CDs, including a recall of the infected discs. However, these measures still fall short of what the company needs to do to fix the problems caused to customers by XCP, and Sony BMG has failed entirely to respond to concerns about MediaMax, which affects over 20 million CDs -- ten times the number of CDs as the XCP software.

Sony BMG is to be commended for its acknowledgment of the serious security problems caused by its XCP software, but it needs to go further to regain the public's trust," said Corynne McSherry, EFF Staff Attorney. "It is unconscionable for Sony BMG to refuse to respond to the privacy and other problems created by the over 20 million CDs containing the SunnComm software."

The suit, to be filed in Los Angeles County Superior court, alleges that the XCP and SunnComm technologies have been installed on the computers of millions of unsuspecting music customers when they used their CDs on machines running the Windows operating system. Researchers have shown that the XCP technology was designed to have many of the qualities of a "rootkit." It was written with the intent of concealing its presence and operation from the owner of the computer, and once installed, it degrades the performance of the machine, opens new security vulnerabilities, and installs updates through an Internet connection to Sony BMG's servers. The nature of a rootkit makes it extremely difficult to remove, often leaving reformatting the computer's hard drive as the only solution. When Sony BMG offered a program to uninstall the dangerous XCP software, researchers found that the installer itself opened even more security vulnerabilities in users' machines. Sony BMG has still refused to use its marketing prowess to widely publicize its recall program to reach the over 2 million XCP-infected customers, has failed to compensate users whose computers were affected and has not eliminated the outrageous terms found in its End User Licensing Agreement (EULA).

The MediaMax software installed on over 20 million CDs has different, but similarly troubling problems. It installs files on the users' computers even if they click "no" on the EULA, and it does not include a way to fully uninstall the program. The software transmits data about users to SunnComm through an Internet connection whenever purchasers listen to CDs, allowing the company to track listening habits -- even though the EULA states that the software will not be used to collect personal information and SunnComm's website says "no information is ever collected about you or your computer." If users repeatedly requested an uninstaller for the MediaMax software, they were eventually provided one, but they first had to provide more personally identifying information. Worse, security researchers recently determined that SunnComm's uninstaller creates significant security risks for users, as the XCP uninstaller did.

"Music fans shouldn't have to install potentially dangerous, privacy intrusive software on their computers just to listen to the music they've legitimately purchased," said EFF Legal Director Cindy Cohn. "Regular CDs have a proven track record -- no one has been exposed to viruses or spyware by playing a regular audio CD on a computer. Why should legitimate customers be guinea pigs for Sony BMG's experiments?" "Consumers have a right to listen to the music they have purchased in private, without record companies spying on their listening habits with surreptitiously-installed programs," added EFF Staff Attorney Kurt Opsahl, "Between the privacy invasions and computer security issues inherent in these technologies, companies should consider whether the damage done to consumer trust and their own public image is worth its scant protection."

Both the XCP and MediaMax CDs include outrageous, anti-consumer terms in their "clickwrap" EULAs. For example, if purchasers declare personal bankruptcy, the EULA requires them to delete any digital copies on their computers or portable music players. The same is true if a customer's house gets burglarized and his CDs stolen, since the EULA allows purchasers to keep copies only so long as they retain physical possession of the original CD. EFF is demanding that Sony BMG remove these unconscionable terms from its EULAs.

The law firms of Green Welling, LLP, and Lerach, Coughlin, Stoia, Geller, Rudman and Robbins, LLP, joined EFF in the case. Sony BMG is also facing at least six other class action lawsuits nationwide and an action by the Texas Attorney General. EFF looks forward to representing the voice of digital music fans in the resolution of these disputes between Sony BMG and consumers.

For more on the Sony BMG litigation, see:

EFF's open letter to Sony:

FCC Urged to Suspend new Internet Wiretap Rules

EFF and Others Petition to Stop 18 Month Countdown to Internet Backdoors

San Francisco - The Electronic Frontier Foundation (EFF), the Center for Democracy and Technology, and representatives of industry, academia, librarians and others today filed a joint request for a stay with the Federal Communications Commission (FCC), arguing that the Commission has been "unreasonable, arbitrary and capricious" in demanding that broadband Internet access providers and interconnected Voice over Internet Protocol (VoIP) providers include backdoors for wiretaps in their services. The stay requested that the Commission should either postpone its Spring 2007 "full compliance" deadline for implementing these taps, or halt the requirement entirely.

EFF, CDT, and other groups have already petitioned the D.C. Circuit Court of Appeals to overrule the FCC's September 23rd ruling extending the 1994 Communications Assistance for Law Enforcement Act (CALEA) to cover broadband Internet access and Voice-over-IP (VoIP) service providers. Under the ruling, companies like Vonage and private institutions that provide Net access, such as universities, have 18 months to redesign their networks to be wiretap-friendly, but neither the ruling nor the FCC have been willing to specify what is required.

"The FCC has distorted an already dubious law designed for telephone services in order to reach Internet providers and private networks," said EFF Senior Staff Attorney Lee Tien. "They have plainly overreached their authority in requiring internet providers to design systems that make surveillance of the public easier and we are confident that the courts will agree. But in the meantime the FCC deadline has not been moved and no one knows what CALEA compliance means on the Internet. The Commission refused to say, the FBI has been playing coy, and the rest of us just don't know. The result is a nonsensical deadline that forces companies to begin compliance without knowing what is required of them, or whether CALEA even applies to them, all happening in the shadow of a strong claim that the FCC does not even have authority to do this at all. The FCC needs to call a timeout until it knows what it wants, and seriously reconsider whether it has the authority to demand it."

CALEA, the controversial law passed in the early 1990s that provides the FCC with powers to mandate backdoors into traditional, centralized telephony systems, expressly exempted information services such as the Internet. At the time of its drafting, Congress was convinced by EFF and other privacy groups that such backdoors would endanger privacy and security, strangle innovation, and be technologically burdensome to implement within the Internet's decentralized architecture.

The September FCC ruling claims, contrary to this plain intent, that CALEA now applies to broadband ISPs and Internet telephony.

Parties supporting the petition include the American Library Association, Association for Community Networking, the Association of College and Research Libraries, Champaign Urbana Community Wireless Network, Electronic Privacy Information Center,, Sun Microsystems and the Texas ISP Association.

Copy of the stay request:

For more on CALEA:

Nominate a Pioneer for EFF's 2006 Pioneer Awards!

EFF established the Pioneer Awards to recognize leaders on the electronic frontier who are extending freedom and innovation in the realm of information technology. This is your opportunity to nominate a deserving individual or group to receive a Pioneer Award for 2006.

The International Pioneer Awards nominations are open both to individuals and organizations from any country. All nominations are reviewed by a panel of judges chosen for their knowledge of the technical, legal, and social issues associated with information technology.

This year's award ceremony will be held in Washington, D.C. in conjunction with the Computers, Freedom and Privacy conference (CFP), which takes place in early May.

How to Nominate Someone for a 2006 Pioneer Award:

You may send as many nominations as you wish, but please use one email per nomination. Please submit your entries via email to We will accept nominations until February 1, 2006.

Simply tell us:

1. The name of the nominee,

2. The phone number or email address or website by which the nominee can be reached, and, most importantly,

3. Why you feel the nominee deserves the award.

Nominee Criteria:

There are no specific categories for the EFF Pioneer Awards, but the following guidelines apply:

1. The nominees must have contributed substantially to the health, growth, accessibility, or freedom of computer-based communications.

2. To be valid, all nominations must contain your reason, however brief, for nominating the individual or organization and a means of contacting the nominee. In addition, while anonymous nominations will be accepted, ideally we'd like to contact the nominating parties in case we need further information.

3. The contribution may be technical, social, economic, or cultural.

4. Nominations may be of individuals, systems, or organizations in the private or public sectors.

5. Nominations are open to all (other than current members of EFF's staff and board or this year's award judges), and you may nominate more than one recipient. You may also nominate yourself or your organization.

6. Persons or representatives of organizations receiving an EFF Pioneer Award will be invited to attend the ceremony at EFF's expense.

More on the EFF Pioneer Awards:


miniLinks features noteworthy news items from around the Internet. miniLinks features noteworthy news items from around the Internet.

EU Recording Industry Wants ISPs to Store, Hand Over Private Data
The international equivalent of the RIAA is lobbying the EU to expand data retention (an extreme power proposed to catch terrorists) to include all crimes: especially catching online infringers.

TiVo to Bring TV Programming to iPod, PSP
Or, as it would be known in a less DRM-encrusted world, "TiVo Introduce Simple File Transferring Feature."

Disturbing Number of Legal Flaws in so-called "DMCA Notices"
A third of DMCA notices submitted to Chilling Effects have no basis in law.

RIAA Online Chats With Students, Says Sony BMG Blameless
Audience's "OMG", "LOL", and "WTF?!111!"s edited for brevity.

Sony Crosses Wrong Man
Texas Attorney General goes after the Sony BMG rootkit.

Lessig, Google, and the APA in New York Public Library: Shhhhh!
Summary of the debate from the New York Times: worth reading for the final quote.

The Price of Price Discrimination
Joel Spolsky on what the music industry is trying to do when it pushes for multiple iTunes prices.

Public Patent Foundation challenges JPEG patent
PPF says Forgent's claims are lossy.

Intimidating the Internet
Ethan Zuckerman scatters the secret police in Tunis.

World's Worst Internets
Reporters Without Borders lists the 15 countries as "enemies of the Internet" --including Tunisia, the EU, and the US.

Fair Use -- Did it Get a Fair Trial?
IPTABlog summarizes Congress' look at fair use.


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