Sony Sues Rootkit Maker

flyboy974 writes "Sony BMG Music Entertainment is suing the company that developed anti-piracy software for its CDs, claiming the technology was defective and cost the record company millions of dollars to settle consumer complaints and government investigations. The software in question is the MediaMax CD protection system, widely derided as a rootkit. Sony BMG is seeking to recover some $12 million in damages from the Phoenix-based technology company, according to court papers filed July 3."

Comments

Sony BMG does nothing to hurt their reputation

[trudyscousin]

The rootkit software was developed by First 4 Internet (now called Fortium Technologies). I suppose that an inability to sue straight can now be added to Sony BMG's portfolio of stupidity and arrogance. I hope SunnComm (now called The Amergence Group), as despicable as its own efforts were, totally owns Sony BMG.

With all these name changes, I wonder when Macrovision is going to change theirs?

Re:Sony BMG does nothing to hurt their reputation

[arivanov]

With all these name changes, I wonder when Macrovision is going to change theirs. Probably on the day DRM is renamed as DCE as per recent industry execs suggestions. Digital Consumer Enablement.

Re:Sony BMG does nothing to hurt their reputation

[Red Flayer]

Well, seeing as Sony did not have direct business dealings with Fortium, how would they have standing to sue them?

Sony made the purchase from Amergence -- they are claiming, among other things, that Amergence delivered a product that did not operate as described.

If Amergence wants to sue Fortium along the same reasoning, they are welcome to -- though I think they'd have a hard time of it.

Who originally wrote the rootkit is of no relevance. What matters is whether Amergence falsely represented the product they sold to Sony.

Re:Sony BMG does nothing to hurt their reputation

[ajs]

First off, Sony will likely win, but as always, it will depend on the specifics of the contractual relationship.

It's probably understandable that technologists would assume that the original author of the software would be the correct target of the lawsuit. This is not so. Sony is not suing over the failure of the code (the code worked relatively correctly), but over the fact that the software was sold to them as a means of controlling their market, and it not only failed to do so, but cause serious injury to their business as a result. That's the fault of the people who represented this software to Sony as a viable solution with acceptable risk.

Re:Sony BMG does nothing to hurt their reputation

[gsslay]

The rootkit software was developed by First 4 Internet (now called Fortium Technologies) Which is a totally irrelevant fact. Sony BMG's contract was with The Amergence Group Inc. If your phone didn't work, would you sue Alexander Bell or your phone company? Guess who you'd have more success suing?

Which is not to say that Sony BMG's case has any merit. But then I, and everyone else here, do not know what the contractual arrangement between the two companies was and how the rootkit was presented to Sony.

Re:Sony BMG does nothing to hurt their reputation

[HTH NE1]

What matters is whether Amergence falsely represented the product they sold to Sony. How? By saying, "DRM is effective," or, "It's completely undetectable"?

Re:Sony BMG does nothing to hurt their reputation

[HTH NE1]

If your phone didn't work, would you sue Alexander Bell or your phone company? Guess who you'd have more success suing? I think you might be able to get a default judgment against Alexander Graham Bell for failure to appear. But then, I don't think he personally has any assets to seize anymore. Of course, IANAL.

Re:Sony BMG does nothing to hurt their reputation

[BakaHoushi]

But Big Brother said it would enable us. You have been reported to the Party.

Also, we've always been at war with Eastasia.

Re:Sony BMG does nothing to hurt their reputation

[Nalarik]

DCE - Digital Consumer Enslavement

Re:Sony BMG does nothing to hurt their reputation

[flight_master]

Also, we've always been at war with Eastasia.

I have reported you to the secret police. We are at war with Eurasia. We have always been at war with Eurasia. Remember that. Always.

$12,000,000 is peanuts.

[Anonymous Coward]

Being able to pass the blame to someone else is priceless.

Re:$12,000,000 is peanuts.

[miro f]

maybe Sony should sue themselves? =)

I don't think Sony should be the ones suing them, they contracted the software, and it was delivered to their specifications. Sony can't blame the people who wrote the software for doing what was asked.

If Sony didn't know what the software was doing then it's their own stupid fault.

If the software was illegal, then it's surely a matter for criminal court, and surely Sony shouldn't be awarded damages for being stupid enough to have this software written in the first place

Re:$12,000,000 is peanuts.

[pluther]

...they contracted the software, and it was delivered to their specifications. Sony can't blame the people who wrote the software for doing what was asked.

I think they probably missed one important specification:

It was supposed to do it without anybody knowing about it.

Re:$12,000,000 is peanuts.

[Red Flayer]

I don't think Sony should be the ones suing them, they contracted the software, and it was delivered to their specifications.

RTFA. One of Sony's claims is that it was not delivered to specifications.

If the software was illegal, then it's surely a matter for criminal court, and surely Sony shouldn't be awarded damages for being stupid enough to have this software written in the first place

Sony settled with various governments to avoid a lengthy legal process. If one of their suppliers was responsible for the illegal code, and falsely represented to Sony that the code was completely legal, then Sony sure as hell has both standing and reason to sue to be recompensed for those damages.

Yes, Sony was responsible for releasing the rootkit on their CDs. However, it is quite possible that Amergence should be held responsible for misleading Sony if that is in fact what happened.

Re:$12,000,000 is peanuts.

[Paradise Pete]

One of Sony's claims is that it was not delivered to specifications.

They should have said that a year ago. And bent over backward to fix the problem. Instead, you may recall, one of their public statements was to shrug it off and say "Most people don't even know what a rootkit is." As if somehow that was the salient point.

I can't understand how anybody who does understand what they did would ever do business with them again, just as a matter of principle.

Re:$12,000,000 is peanuts.

[AdmiralWeirdbeard]

Yes, but I believe what the gp was saying is that this claim of "software wasnt delivered to specifications" is clearly a post hoc piece of garbage that they are alleging to try to pass the buck. They fought too hard and long saying that there was nothing wrong with the rootkits and that it was necessary to protect their IP blah blah blah blah, for any kind of *collarpull* "oh we totally didnt ask for the software to do these things" to be given any credence whatsoever.

What do you think went down? Sony asked for a noninvasive piece of monitoring software that could be easily detected and removed or blocked from being installed, and then they were delivered a fucking rootkit instead and they went "Dur, look fine to us" and ran with it? Fuck no. They tested it, inspected it, decided it was exactly what they wanted, and then ran with it. And they deserve every penny lost because of their actions.

Responsibility

[fastest fascist]

Seems to me like the responsibility for the functioning of a product should fall upon the distributor. Of course, you could ask if Sony is suing more for the money or as a PR measure to try to shrug off some of the blame for the whole debacle.

Re:Responsibility

[AvitarX]

Sony was responsible for distribution to the public.

Now they are trying to hold someone responsible for distributing to them.

Re:Responsibility

[toleraen]

It was Sony's responsibility. Hence they were sued by the consumers for it. However, if the company provided Sony with software that was not fully functional (overly functional?) without disclosing it, it's definitely court time. The PR certainly doesn't hurt though.

Re:Responsibility

[ookabooka]

I just thought of a counterpoint to my argument, and then figured out a counterpoint to that. . .so I'm gonna post both as a reply:

Counterpoint:Sony is still ultimately responsible for what goes on their disks.
Counter-counterpoint:If Sony sends a software engineering firm a description for a project and the firm gives them a finished project, expecting Sony to have software engineers of its own to go over and affirm it is built to spec is a bit hard to swallow. They might have well just built it themselves in the first place. I'm sure you could think of a million examples, like a mobo manufacturer that orders capacitors that are faulty. . .whos responsibility is it? The mobo manufacturer because they are last in line before consumers?

Alright, before I go I'll say one more thing: How does this compare to Firestone v. Ford blowouts. Discuss.

Re:Responsibility

[badasscat]

Either way I'd expect a company of Sony's scale to put in the due diligence to ensure the products they buy are without legal issues.

That's not really the way it works, in any company.

Too many deals are done for a large company to scrutinize every single product they buy. That's the whole point of using outside vendors; if they're going to put in the time to fully examine all the code, they may as well just develop the DRM themselves. Instead, the contracts are worded in such a way that it puts the onus on the provider of the product. That way, it's in the best interests of the provider of the product to ensure that what they're providing meets specifications and adheres to the letter of the contract. Otherwise, they know they're at risk of a lawsuit like this.

I doubt the contract here was any exception, which means Sony most definitely has the upper hand. And they really have to file a lawsuit in order to preserve their leverage against all of their other technology providers. This is how they ensure they get what they're contracting for.

I bet they knew but didn't understand

[jjeffrey]

I'd be prepared to put money on Sony losing this case. I'm sure we've all seen this sort of thing before. Media Max will have warned Sony that the approach had problems, they will have a mail chain demonstrating that, but Sony's management will have bullishly insisted on the security features it offered while ignoring or not bothering to understand the warnings it contained about the risks. What are the chances even their own technical advisors internally warned against it?

Re:I bet they knew but didn't understand

[that IT girl]

That's the first thing that came to my mind--it's ridiculous for Sony to claim that they had no idea what it was going to do or that they actually thought nobody would care. Remember what Sony president Tony Hesse said about it back in late 2005?

http://www.betanews.com/article/Sony_President_Roo tkit_of_No_Concern/1131475197

Suuuuuure, Tony. That kind of flip attitude about it will not be exactly convincing.

The enemy of our enemy...

[Dan East]

The enemy of our enemy is still our enemy. In this case let them fight it out, and hopefully in the future all parties involved (content producers, technology developers, etc) will be too scared of financial damages to do something this stupid again.

This is actually a very good thing, because no-one involved will be immune to the consequences.

Dan East

Sony lawyers are shocked and surprised.

[140Mandak262Jamuna]

In a recent development the lawyers of Sony were bewildered. None of the documents they had on their computers relating to the contract and negotiations with MediaMax could be found in their computers. The lawyes were muttering, "cant believe it. I know I saved those emails and pdfs right in the hard disk. Where the hell could they be hiding?".

There's an idea!

[Rob T Firefly]

All those landmines I buried in my front lawn made me look like a total psychopath when they blew up all those postal carriers, girl scouts, and neighborhood cats. Apparently, I can restore my status as a fine upstanding member of the community by simply suing the manufacturer of said landmines!

Re:There's an idea!

[king-manic]

All those landmines I buried in my front lawn made me look like a total psychopath when they blew up all those postal carriers, girl scouts, and neighborhood cats. Apparently, I can restore my status as a fine upstanding member of the community by simply suing the manufacturer of said landmines!

If you hired a security company to burglar proof your home and were not present for the installation of land mines then you might have a case.

Defective by Design

[Synchis]

Yet another great example of a Product with DRM being Defective by Design! Join the movement: Defective By Design

But didn't they read the Click-through EULA?

[erroneus]

...that they do not warrant nor guarantee this software to be suitable for any function or use, especially for that which it was designed? That they agree to indemnify (love that word, it means you can't sue or hold responsible) the seller or maker of the software for any reason at all?

Let me be the first to say...

[CastrTroy]

Let me be the first to say that this is completely stupid. Nobody forced Sony to put that software on the CDs, and I wouldn't doubt that Sony knew exactly what they were doing when they put that software on the CDs. If they didn't, well then, it's their own fault. Having them pass the blame on to the company that made this software just make me hate Sony even more. Sony has done so many braindead things in the past couple of years that it's no wonder that Nintendo stock rose above theirs, if only for a short while. From rootkits, to $600+ consoles, to sueing the people who sold them the rootkit, I just can't imagine what they'll do next.

Disclaimer: I'm not saying I hate them because they released a $600+ console ( + because it's even more expensive once you buy a game and a second controller) but what I'm saying is that it's a really boneheaded idea, and I don't know how they ever thought it would have mass appeal, no matter how good the graphics are.

Re:Like a celebrity deathmatch...

[Whiney Mac Fanboy]

Your post indicates that you think I equate Bush & Kim Il. I dont. I just hope they both lose (in a celebrity deathmatch).

I hope Sony read the EULA...

[sjs132]

"Section 938.334 Sub W.

By agreeing to use this product to proctect your music CD's from piracy you also agree to hold us immune from any lawsuits, incurred directly or indirectly, due to your customers not liking this product."


oops... Guess they should read those EULA's VERY CAREFULLY...

At least that is what these companies would say to us...

":{ Grr...

Re:If Kim Jong Il Were President

[lilomar]

You had me until:

There would be no hollywood stars, or media or celebrity watch, At which point I start thinking about acceptable trade-offs...

[/joke]

Re:I'm confused

[Craig Maloney]

I believe the formula works like this:

Sony releases DRM protected discs = -5,000 pts.
DRM Discs contain rootkit = -10,000 pts.
Sony denies any wrongdoing = -60,000 pts.
Sony realizes mistake = +100 pts.
Sony releases patch = +1,000 pts.
Public realizes cure worse than the disease = -5,000 pts.
Sony recalls discs = +10,000 pts.
Sony releases BluRay and PS3 = 0 pts.
Sony sues DRM Manufacturer = + 1pts.

So, in total, Sony is 68,899 points in the hole. I think its safe to say they're still pariahs here.

Re:I'm confused

[networkBoy]

A company to hate I think that's microsoft around here, though Sony is up there too I guess.

Nothing wrong with preventing copy yes there is something wrong. I do not want to buy a song from iTunes for a buck that I already have on disk, just to listen to it on my iPod, or better yet, I don't have an iPod, so iTunes is useless to me, and AllOfMP3 is shuttered so I can't get MP3's there, thus they have to come from my CD or from file-sharing as my only two choices.

The company they hired pushed faulty software Actually I think this was a different company than the root kit, but since most everyone who understands the media's goal with DRM agrees it's defective by design, then yes I agree.

As a person who has used sony programs and devices for years ditto, though no more and never again if at all avoidable

I can attest that normally their EULA's are in your face and pretty annoying. This case just seems out of character for the company. betamax licensing was just as bad, no it's not that far out of character. Just in the consumers face nowdays.
The Sony I used to love is dead. Management changes have turned it from a pioneering company into a slogging lumbering hulk that only wants more money, not customers' loyalty.
-nB

If there is any justice they will get a coupon

[bigbigbison]

The results of the class action lawsuit against Sony was that you could either get $7.50 and download an album or download 3 albums. Like every class action lawsuit I've ever been a part of from Sony all the way back to when Kodak brought out their own version of a Polaroid-style camera, the only people that ever benefit are the lawyers. The rest of us just get coupons for more crap from the company that caused the problem in the first place.

If there is any justice then Sony will just get a coupon for more rootkits from the company and not any actual money.

Re:Responsibility - PR DOES hurt

[reiley]

I think the PR DOES hurt in this case. They should be trying to let people forget that they ever distributed root kits at all

Re:I'm confused

[riceboy50]

I do not want to buy a song from iTunes for a buck that I already have on disk, just to listen to it on my iPod, or better yet, I don't have an iPod, so iTunes is useless to me I am tired of this argument. It is just plain incorrect.

1. You do not have to buy music from the iTunes store in order to listen to it on your iPod. If you rip the music into iTunes from your CD, it will be in the AAC/MP4 standard sans DRM.
2. iTunes does not require an iPod or the iTunes store in order to be a useful application. It is just a media jukebox that can rip and burn CDs. However, it can also purchase music from the iTunes store and copy files onto an iPod.

When are people going to stop deriding iTunes and the iPod on these grounds?

Re:I'm confused

[Paradoks]

IANAL, either, but if I recall correctly, the DMCA doesn't have a fair-use exemption. So, sure, you can make all the fair-use copies you want from any of your copy-protected CDs or DVDs. It's just that, while exercising your fair-use rights, you'd be circumventing DRM, which is illegal under the DMCA.

Which is why those who support that portion of the DMCA are enemies of freedom.

So to speak.