Legal Issues

by Mike Masnick

The Difficulty Of Suing Sony BMG For Violating GPL With Their Rootkit

from the ain't-so-easy dept

Back when the Sony rootkit fiasco hit, some people noticed the irony that this product Sony kept insisting was designed to "protect" intellectual property was actually making unauthorized use of some open source code, and not abiding by the license the software was released under. Now, Digg points out that DVD Jon, the author of some of the code being used (extra amusing, since the his claim to fame is breaking copy protection and getting sued by the entertainment industry), has discovered it doesn't really make sense to sue Sony BMG, because the work isn't registered at the Copyright Office. The code is covered by copyright, but the law says you can only go after statutory damages (basically above the nominal damages) if it's registered. Secondly, it's difficult to prove what those nominal damages are -- especially since the code was GPL'd. Basically, there aren't really any nominal damages. The only way to get money is to go for statutory damages -- and you can't do that without a registered copyright. If Sony BMG were still using the software, then he could sue to get them to stop -- but since they've officially stopped (even if they're still widely available) there just isn't that much to be gained in a lawsuit. So, basically, there's almost no remedy for him under the law -- making it pretty pointless to sue at this point, no matter how amusing the resulting lawsuit would have been.

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  • identicon
    BG, 1 Feb 2006 @ 5:45am

    No Subject Given

    Surely if the copyright-breaking technology is still available it would make sense to sue for it to be recalled. Effectively, SONY *are* still "using" the software because it still can infect new machines. RECALL!!

    reply to this | link to this | view in chronology ]

    • identicon
      Anon, 1 Feb 2006 @ 6:16am


      Sony did make a recall and they are offering a joke of a deal to people who have the affected disks. They aren't making amends to people who's pcs were affected though.

      Interesting side thought, this gives precedence for anyone to steal GPL'd code that isn't registered as copyrighted.

      reply to this | link to this | view in chronology ]

  • identicon
    AvitarX, 1 Feb 2006 @ 6:22am

    Lots of damages

    Wouldn't the damages be the lowest amount he was willing to sell it under a non-gpl liscense for?

    reply to this | link to this | view in chronology ]

  • identicon
    WollyHood, 1 Feb 2006 @ 7:47am


    Wouldn't the point of suing be to set a precedent?

    reply to this | link to this | view in chronology ]

  • identicon
    Ed, 1 Feb 2006 @ 7:49am

    hey CAN get damages

    Being an IP lawyer, I know that he can get damages.
    All he has to do is register the coyprighted code NOW, and then file suit LATER. It does not matter when it was infringed.

    If you have any questions, I'm adding my hotmail email:

    I would be happy to help.

    reply to this | link to this | view in chronology ]

  • identicon
    giafly, 1 Feb 2006 @ 7:52am

    It still makes sense to sue

    ... because if Sony lose then everyone could call them "vandals", "criminals", "thieves" and "pirates" forever more, without any risk of a libel suit.

    They are thought to have settled an unrelated UK case out-of-court to avoid this, so they ought to be willing to pay (say) $100K damages in the USA to avoid a court case.

    reply to this | link to this | view in chronology ]

  • identicon
    cb, 1 Feb 2006 @ 8:21am

    why bother

    So if each song isn't registered (copyright) is that saying that the RIAA can not sue you because it was not registered ? Does anybody know if each song title gets registered ?? Interesting question...... anybody know ?/?///????

    reply to this | link to this | view in chronology ]

    • identicon
      anon, 1 Feb 2006 @ 9:23am

      Re: why bother

      Yes, any song by a big name record company will be registered. Band names are trademarked as well.
      I'm an amatuer musician (not a lawyer, so don't take all this to the bank), and my band has looked into everything that is done when you put out an album.
      Work is copyrited as soon as pen is put to paper. Without registration, it is difficult to prove that you are the one that penned the particular [music, code, book, ect]. If you don't copyright it, and someone steals your song, you would have to get it registered before going to court to really have a chance at anything.
      So again, the short answer is yes, all songs from large name music companies get registered. One may slip through the cracks, but it is very unlikely because they don't want to lose a cent, and it is VERY cheap to get something copyrited.
      Anon 2006

      reply to this | link to this | view in chronology ]

  • identicon
    Just one guy, 2 Feb 2006 @ 5:11am

    Wrong question

    I believe DVD Jon got the (possibly) right answer to the wrong question.

    What Sony/BMG did was not to steal revenues out of his own work. This is basically what copyright is for. The strong idea behind GPL is that in exchange for the release of copyright revenues, users willingly accept a restriction in the allowed uses.

    So it's not copyright compensation that DVD Jon should look for: he voluntarily released copyright revenues when choosing GPL. What we have here is simply and clearly a breach of contract, because Sony/BMG put his code to an use they simply were not allowed to.

    This has both civil and criminal impacts, and although GPL makes it difficult to calculate the kind of economic compensation he is worth, the issue of breach of contract very definitely makes it an interesting case to pursue in court, possibly with the aid of EFF.

    reply to this | link to this | view in chronology ]

  • identicon
    Monsuco, 30 Nov 2008 @ 12:27am

    Jon should sue, but he shouldn't sue for damages.

    Jon can however, sue on these grounds:

    They can argue that since they used GPLed code in their software, (and they also used modified LGPL code), in there their software. This means, simply that Sony must release the source code, not that they ow Jon any money. The GPL doesn't require you pay someone to use their work, but they do ow every user of the XCP disk the full source code to the XCP scheme.

    That would be fun, to get to see how that rootkit works in source form.

    reply to this | link to this | view in chronology ]

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