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A Legal Analysis of the Sony BMG Rootkit Debacle
YIAAL writes "Two lawyers from the Berkeley Center for Law and Technology look at the Sony BMG Rootkit debacle: 'The Article first addresses the market-based rationales that likely influenced Sony BMG's deployment of these DRM systems and reveals that even the most charitable interpretation of Sony BMG's internal strategizing demonstrates a failure to adequately value security and privacy. After taking stock of the then-existing technological environment that both encouraged and enabled the distribution of these protection measures, the Article examines law, the third vector of influence on Sony BMG's decision to release flawed protection measures into the wild, and argues that existing doctrine in the fields of contract, intellectual property, and consumer protection law fails to adequately counter the technological and market forces that allowed a self-interested actor to inflict these harms on the public.' Yes, under 'even the most charitable interpretation' it was a lousy idea. The article also suggests some changes to the DMCA to protect consumers from this sort of intrusive, and security-undermining, technique in the future."
A quote from Lessig's Free Culture:
Legal norms are not just about judicial precedent.
...the market-based rationales that likely influenced Sony BMG's deployment of these DRM systems... ...demonstrates a failure to adequately value security and privacy.
... then-existing technological environment that both encouraged and enabled the distribution of these protection measures... ... flawed protection measures... ... contract, intellectual property, and consumer protection law... ...is whatever the hell Sony's legal department says it is. And we have many, many millions of dollars, euro, UK pounds, or yen to prove it. Without the cash, talk is trash.
... Yes, under 'even the most charitable interpretation' it was a lousy idea...
...
That's pretty simple. They thought that there was a vast network of 13-year-old superhackers that were going to destroy the company by sharing files of music recordings. Then some schmuck (names? anyone who knows?) in the firmware special projects department told some marketing manager that he knew how to keep 13-year-old superhackers from copying music from CDs by simply adding a little piece of code.
The only security and privacy that they care about is their own. These concepts don't exist for people who are not executives in the company. Especially customers.
"Since we own the music on the disk that is placed into a computer CD drive, we, by the simple and obvious extension of corporate logic, thereby own the computer and all of the data inside it." If you want to become a corporate executive, you need to start thinking like one.
If it keeps ordinary people from copying stupid pop songs from our CDs, then it is not flawed. If it destroys or corrupts the data on user's PC, we don't care. Serves them right as they are supposed to only be listening to CDs on a real Sony CD player. After all, we invented the CD so we can set the terms on its use.
Next year's rootkit software will work. And the first thing that it will do is send your name and address to our lawyer's office who will prepare a standardized form charging you with theft of intellectual property (which is some illiterate junkie thug under Sony corporate contract moaning 'baby, baby, baby' over and over). Our bot software will then serve this to anyone who puts a Sony music CD into any device with internet access (unless, of course, the device is a $999 Sony model DRM-XKE CD player with hi-def 2-inch LCD screen and wireless internet access). After all, we invented the CD so we can set the terms on its use.
suggests some changes to the DMCA
The only changes that our legal department will allow the US politicians to pass will be ones that increase the criminal penalties for possession of music. This will happen when Sony completes its corporate merger with Wackenhut and CCA and completes the vast network of corporate prisons being built in distant lands. These will be needed to hold the vast number of unemployed former American college students who not only illegally listened to music, but also fell behind on their student loan payments.
As much as I like that story, and its one of my all time favorite books, it starts with the premise that returning soldiers would essentially take over the world and everything would be wonderful thereafter. History has shown quite clearly that every time this occurs things go badly.
Except that they don't become "Citizens" until *after* they have served, and are no longer in the military. History has indeed shown that when the military takes over the government, then yes, bad things happen. But that's not the system that was described. It was civilians who had *previously* served in the military. Even today, one of the qualifications that many people look for in their elected leaders is previous military service.
History has shown that when citizens are ignorant of history, the means by which they both first gained and retain their freedoms, and by which their country remains free from attack, very bad things happen. Pearl Harbor happened because Japan saw that America after WW1 had shrunk their military to a fraction of its' previous strength, and the citizens and most of the government had a policy of isolationism and retreat from world conflict. Japan failed to take into account the American peoples' outrage and anger, and the sleeping industrial might America could bring to bear.
The surest way to get robbed in a big city is to look and act like a victim. The surest way to start a war is to appear conquerable to other nations with acceptable losses. That's precisely what the people who advocate unilateral disarmament, and also those who preach disengagement when targeted by terrorists, fail to understand.
As to the Sony/BMG rootkit incident, as long as the punishment for getting caught in bad corporate behavior is acceptable, expect to see such behavior repeated.
Cheers!
Strat
Progressivism (aka US 'Liberalism'): Ideas so good they need a police/surveillance-state to enforce.
Just a minor thing on Starship Troopers:
Not all the people who volunteered for public service ended up as soldiers - they simply ended up doing what their society thought it needed and they had the ability to do.
Heinlein actually wrote a bit about the "world" of Starship Troopers in Expanding Universe (in a retrospective on his literary career).
At the time when the events in the book take place, quite a lot of people were needed as soldiers - but due to the way we people are wired (with tight-nit social groups as soldiers), soldiers were usually the last to stop serving in public and thus the last to actually get to vote.
Yes, you didn't get the franchise until *after* you've stopped serving in that world.
I do agree that the premise is shaky - but the idea of not giving everyone franchise just because they were 18 years old and alive was one of the ideas Heinlein was toying with in that book.
Of course, he argued that clearly the founders of US of A never intended everyone to get the franchise either - his criterion were simply a bit more merit-based.
In Expanding Universe he did mention that the idea of having stable people with a stake in maintaining a working society as a rather good idea, and goes on arguing for removing the franchise from men and giving it to women who have born children, as they have a personal reason for being interested in having a society that works... and makes a rather convincing argument of it.
I can heartily recommend Expanding Universe if you are interested in what Heinlein said he was thinking when writing.
As with all things written down, of course, you must consider the source - but I got a lot of amusement out of his writings, and like his meritocratic views personally.
The book "Requiem" is also a good read, if a trifle sad at times - but it did contain his speeches at a few scifi conventions which I hadn't read - highly interesting for a person not born until the last years of the Red Scare.
(Sorry for pushing Heinlein, but I really liked those books and they represent a very enlightening perspective on what Heinlein professed to believe.)
This is probably not best discussed in terms of "protecting IP rights" but rather in terms of:
Someone at Sony was charged with "doing something" and "making the piracy problem go away". They were desperate. They also wanted something to show for their efforts, namely, an ability to exercise power on user desktops. (Recall, the copyright terrorists have long wanted "self-help" capabilities that amount to sabotaging users' property at will.)
Spyware must have seemed like a perfect solution: it doesn't just "do something" about the pirates, it accomplishes a long-standing goal of seizing greater control of the medium. It is not at all about "IP rights"; it's about power -- in this case, about ripping power out of the users' hands.