Sony to Settle Spyware Suit with Downloads?

modemac writes to tell us the Seattle PI is reporting that a judge has 'tentatively' approved a settlement against Sony BMG that would give customers free music downloads as compensation for the recent flawed 'rootkit' software on many new CDs. From the article: 'According to terms of the settlement, Sony BMG will let consumers who bought the CDs receive replacement discs without the anti-piracy technology and will let them choose one of two incentive packages. The first package lets consumers who bought XCP CDs to obtain a cash payment of $7.50 and a promotion code allowing them to download one additional album from a list of more than 200 titles. The second package permits them to download three additional albums from the list. The court papers said Sony BMG would try to offer Apple Computer Inc.'s iTunes as one of the download services available to the consumers.'"

Comments

Re:Odd how the accounting works

[TubeSteak]

So when they let you download two additional albums, the combined value is $7.50. When you get them from a friend, they are suddenly worth $75,000.00.

Which is why you can remove yourself from the class action and sue Sony's ass for fun stuff like damages.

But first, 1,000 people have to withdraw

D. Defendants' Limited Right To Withdraw From Settlement
Defendants have the right to withdraw from the settlement, if the number of timely and valid requests for exclusion from the Settlement Class exceeds 1,000.

The post (from the previous article) I found that info in

So.... Sony isn't going to see any criminal charges, but you can definitely have a go at trying to get more blood out of them.

Re:Odd how the accounting works

[micheas]

A slightly more informative link. http://www.eff.org/IP/DRM/Sony-BMG/settlement_faq. php

At first I was unhappy with the settlement, but then I got to the following section:

I think my CD drive was seriously damaged by the XCP or MediaMax software. Do I have to give up my claims against Sony BMG for this injury?

        No. The settlement does not release claims for:

                * damage to a computer or network resulting from interactions between the XCP Software or the MediaMax Software and your computer (e.g., damage to your hard drive);
                * damage related to your reasonable efforts to remove the XCP Software or the MediaMax Software; or
                * copyright, trademark or other claims arising from the development of the MediaMax Software or the XCP Software, or any uninstallers or updates thereto.

        You may still sue Sony BMG for any such claims, whether or not you choose to take advantage of the settlement benefits. As part of the settlement process, Sony BMG agreed to waive its unconscionable New York forum selection clause and $5 limit on damages, so you can take them to your local small claims court for your damages. EFF will be developing a web page explaining how to use the small claims process to bring a lawsuit against Sony BMG.

I am not a lawyer, but I would like a small claims slashdotting of sony for this.

Remove the root kit, for someone that got toasted, send them a bill, attach the small claims form to the bill: Imagine the pain of forty thousand small claims actions against them.

So, if my reading is correct, only if the damage is greater than small claims court do you want to opt out. otherwise we can try for the first small claims slashdotting.

Re:Odd how the accounting works

[TubeSteak]

Ouch... that is really going to hurt Sony.

Sony BMG agreed to waive its unconscionable New York forum selection clause and $5 limit on damages

For the people who don't know what that means... Sony is not going to be able to enforce those two portions of their EULA.

I'd like to know if "unconscionable" was the EFF's wording, or... because Unconscionable (with regards to a contract) is like asking for someone's first born child.

There is zero (0) chance that they're going to be able to send out lawyers to deal with every single small claims suit filed across the country. The net result is going to be a shit-load of default judgements against Sony (assuming people know to sue).

Re:Odd how the accounting works

[denebian devil]

Not only that, members of a class action can choose to "opt out" and sue Sony directly if they desire. Though it probably would not be easy to do for an average individual. http://www.eff.org/IP/DRM/Sony-BMG/settlement_faq. php#10 I don't like this settlement. How do I opt out? If you don't want to participate in the settlement and get the settlement benefits, and you want to keep the right to sue Sony BMG on your own about any of the claims that this settlement resolves, then you must take steps to opt out. If you want to exclude yourself from the settlement, you must send a letter by mail clearly indicating your name, address and telephone number and stating that you "request to be excluded from the Settlement Class in the Sony BMG CD Technologies Litigation," and you must sign the letter. You also must state the title of the XCP CD or MediaMax CD that you bought, received or used. More information about opting out will be included in the settlement notices that will go out by February 15, 2006. Important Note: You must opt-out by MAY 1, 2006.

"unconscionable"

[djw]

IANAL, but I'm about to marry one.

"Unconscionable" in contract terms is not about morality -- it simply means that the clause doesn't belong there by any stretch of the imagination. In other words, if party A drafted the contract, then it's totally unreasonable to expect party B to have foreseen that clause appearing in it, or to have signed the contract had they known the clause was there. The New York venue clause is an example because, when you're buying a CD, you simply don't expect to have to go to another state for justice if it blows up your computer. In other words, if a reasonable person knew about that little detail in advance, they would never buy the CD. (For the sake of argument, I'm making the rather large assumption that purchasing a CD constitutes acceptance of any sort of contract other than a simple sale.)

Courts generally will not enforce unconscionable terms. But note that this doesn't excuse you from reading what you sign, or from being held to what you sign (given that the other side can show that you gave willing and informed consent). Generally, the more of a clue you seem to have, the less likely a judge will be to let you use this kind of defense. And if you're a lawyer yourself, forget it! This aspect of contract law can seem really unfair to smart people, but there you go.