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Sony DRM Installed Even When EULA Declined

Zonk posted more than 8 years ago | from the damned-if-you-don't dept.

Sony 433

HikingStick writes "News.com is reporting that the Texas attorney general is expanding the allegations against Sony. It seems the software would install even if users declined the EULA. From the article: 'The Texas attorney general said on Wednesday that he added a new claim to a lawsuit charging Sony BMG Music Entertainment with violating the state's laws on deceptive trade practices by hiding 'spyware' on its compact discs ... The new charges brought by Abbott contend that MediaMax software used by Sony BMG to thwart illegal copying of music on CDs violated state laws because it was downloaded even if users rejected a license agreement.'"

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FP (-1, Offtopic)

BushCheney08 (917605) | more than 8 years ago | (#14318628)

First Post!

By modding this post down, you accept that it will instead be modded up.

Re:FP (0, Offtopic)

jzyg (525776) | more than 8 years ago | (#14318666)

whatever. this is a majordomo issue! ALOT of people get in trouble, when they don't understand the basic principle of "No means No".

Criminal Tresspass (5, Interesting)

Renraku (518261) | more than 8 years ago | (#14318636)

"Can I come into your house?"

"Nope."

"Ok."

Man turns around to find the stranger at the door has already moved his shit into his house. Does this not constitute tresspassing?

Re:Criminal Tresspass (-1)

Anonymous Coward | more than 8 years ago | (#14318891)

Yes you can come to my house. I live on http://www.hotwebcam.org/ [hotwebcam.org] ;-)

It's even funnier than this... (5, Insightful)

Concern (819622) | more than 8 years ago | (#14318894)

Imagine if you order a box of catfood to be delivered that's worth about $10. And then the next day a crowd of 15 attorneys in suits arrive at your door with a 20 page contract, and the box. They won't give you the catfood until you agree to their "license." You can either call your own attorneys, if you have any, and spend several weeks evaluating their contract at the cost of several thousand dollars of your own money, or, they say, you can simply agree to the contract by blinking your eyes.

It turns out that there were worms in the catfood and now your cat is incredibly sick. Amazingly, the attorneys did this on purpose. If you take her to the vet, it will cost you hundreds of dollars to cure her. You don't remember blinking, but they swear you did.

The government has sent an angry letter to the catfood guys, but no one looks like they have any intention of paying your vet bill - or even sending your cat a get well card.

In response to the government, the catfood people announce they've "solved" the problem, because they've agreed to temporarily stop shipping worms in catfood. However, they're still shipping spiders, ants, and leeches - and they have "big plans" to expand the practice.

You don't know exactly how long your cat has left to live, but after watching all this, you get the feeling its days are numbered one way or another.

Re:It's even funnier than this... (-1, Troll)

91degrees (207121) | more than 8 years ago | (#14319029)

I'm not sure I see your point. How does a totally contrived, but more complicated situation help?

Re:Criminal Tresspass (1, Insightful)

Sparr0 (451780) | more than 8 years ago | (#14318904)

Totally wrong analogy. This has been covered from another point of view many times before here. The prompt regarding the EULA has NOTHING to do with installing the software. You are already in the process of installing the software when the prompt appears. Accepting or declining the EULA simply indicates whether you are willing to accept the restrictions of the agreement in return for the rights it offers. After declining the EULA you are under no obligation to not use the software, and there is no reason for them to abort the installation, that is what the [X] button is for.

To amend your analogy... After youve already invited someone into your house, just because you say you don't want to buy their cookies doesnt mean they have to take the boxes when they leave. They can leave the cookies and walk out, and they are yours to eat or not as you please with no obligations.

Re:Criminal Tresspass (3, Interesting)

Alistar (900738) | more than 8 years ago | (#14318962)

Yea, but you are not told what the software does until you run it. It would be more analagous to seeing girl guides at your door, you let them in, they offer to sell you cookies, you say you aren't interested and they leave a paint bomb in your lobby on their way out.

Re:Criminal Tresspass (0)

Anonymous Coward | more than 8 years ago | (#14318975)

I'll have to try that one next time I get arrested for raping some woman.

"But she didn't say no until after I told her I wasn't the repairman!"

Re:Criminal Tresspass (5, Insightful)

Qzukk (229616) | more than 8 years ago | (#14319034)

Huh?

When I put the CD in the drive, I wanted to play some music, not install some software. It's YOUR analogy that's flawed.

How about this:

I run a bar and decide to get some live music, so I call up a group of musicians. A popular and very well known band, of course, I don't want to drive my patrons out. They tell me "sure, we'll come and play, just give us some money." So I send them a payment, and the day of the performance, they show up with a 50 page contract. "Just sign this and we'll be set". I look over it, and I see among it's provisions that they're going to firebomb the stage at the end of the show. I give them the contract back and tell them no.

Then they firebomb the stage.

Can anyone here see a problem? (4, Interesting)

dada21 (163177) | more than 8 years ago | (#14318637)


Let's look at the article:

'The Texas attorney general said on Wednesday that he added a new claim to a lawsuit charging Sony BMG Music Entertainment with violating the state's laws on deceptive trade practices by hiding 'spyware' on its compact discs

Oh, so the state was hurt, and they're the ones who have to go after Sony?

The way I see it, Sony breached a contract. This is easily resolved in court, and anyone who had their contract breached by Sony should go ahead and file an independent lawsuit (not a class action lawsuit). You can hire a local attorney and move forward.

Wait, it is costly to sue a big company? Might that be due to the laws created in your state? Might that be due to the lawyers in control of the operation of the law?

No matter how often you lose, you will continue to lose. The system isn't by the People for the People any more. We're living in a country where the system is so powerful, only the powerful have rights. Let's ignore the state's concerns in this situation -- they're only going to find themselves stronger. They're going to fight Sony with millions of taxpayer dollars, and if they win, the taxpayers won't see a cent, but a bunch of state lawyers and Sony lawyers will be wealthier.

Step back. Look at the problem. The problem is that contract law is too complicated, and you can't fight a contract violation in court without a contract lawyer who likely is part of an organization that wrote the law. Ignore Sony, ignore all terribly written contracts. We need to get to the source of the problem and fix it. Let us return to the days when the law was simple to read, and simple to enforce. Let us return to the days when we could walk up to a court clerk, file a grievance and sue the people who violated the contract, just them and us.

Who is with me in asking for an amendment limiting all laws to one topic, 200 words or less, and only can pass with a signature of the President and a signature of a random person with a 3rd grade education who agrees that even they understand the law?

What Sony did was bad, but if contract law was written clearly and concisely, we'd have ways to defend ourselves cheaply and efficiently. The law is a mockery of justice today, and there is ZERO way for any individual or small group to win in the long run.

FYI, for other anarchocapitalists out there, my solution is true moderated arbitration mechanisms in a free market, not the law or the courts.

Re:Can anyone here see a problem? (5, Insightful)

mlong (160620) | more than 8 years ago | (#14318686)

The way I see it, Sony breached a contract. This is easily resolved in court, and anyone who had their contract breached by Sony should go ahead and file an independent lawsuit (not a class action lawsuit). You can hire a local attorney and move forward.

However, since one clicked Disagree/Decline, then they did not enter into any contract. Yet Sony went and installed software anyway. That is trespass and thus the state should be involved since it was illegal activity.

Re:Can anyone here see a problem? (4, Informative)

twiddlingbits (707452) | more than 8 years ago | (#14318759)

Correct, contracts have to be entered into bilaterally not unilaterally. It is a matter for the State as it is then Fraud to execute a contract not agreed to by both parties. Criminal prosecution IS the domain of the State. If the GP poster can think of a civil tort that was committed by Sony the sue them. Find a good lawyer who will get 40% of what you win and go for it. Or you could go to small claims court. If you win, just how do you think you will enforce the penalty?

Re:Can anyone here see a problem? (4, Insightful)

dr_dank (472072) | more than 8 years ago | (#14318956)

That is trespass and thus the state should be involved since it was illegal activity.

Might makes right. A cracker who sends trojans or rootkits may actually see fines or jailtime. A corporation who does the same thing is just protecting its IP or, if suitably backed into a corner, admit they made a mistake and continue doing the same crap with a different name. You'll never see a single indictment for wrongdoing at a large company for this.

Re:Can anyone here see a problem? (0)

Anonymous Coward | more than 8 years ago | (#14319010)

New defense for crackers: I work for Sony!!
arresting officers leave empty handed...

Re:Can anyone here see a problem? (0)

Anonymous Coward | more than 8 years ago | (#14318720)

Who is with me in asking for an amendment limiting all laws to one topic, 200 words or less, and only can pass with a signature of the President and a signature of a random person with a 3rd grade education who agrees that even they understand the law?

Wouldn't that exclude the current president?

Re:Can anyone here see a problem? (4, Insightful)

AKAImBatman (238306) | more than 8 years ago | (#14318726)

The way I see it, Sony breached a contract.

A contract is, by definition, a bilateral agreement. The EULA is a contract offer, and if it is declined, there is NO contract between Sony and the user. What that means is that Sony is forcing a unilateral agreement onto a user who does not have a contract with Sony. That's a criminal case, not a civil case.

Of course, I'm not a lawyer, so take my comment with a grain of salt. But that's my interpretation of it in a nutshell.

Re:Can anyone here see a problem? (4, Insightful)

jebell (567579) | more than 8 years ago | (#14318737)

While I generally agree with your sentiments regarding pre-existing civil remedies, state Attorneys General routinely file "consumer-protection" type of law suits against big companies in order to spare the consumers from having to litigate matters that would otherwise be too costly.

While some have criticized over-active Attorneys General, like New York's Eliot Spitzer, for being too litigious, I think this type of action has its place. It's definitely better than the standard class-action suit where the lawyers are made rich and the class members get a coupon for $5 off their next purchase of the product they complained about in the first place. I don't think the "state lawyers" get rich in this type of case, although there are instances (like the tobacco litigation) where the states hired outside lawyers to litigate this stuff.

Law has always been complicated, believe it or not. Else, why have we had lawyers for so long? At least for the last couple of hundred years, we've actually had laws that are written down in codes and case books.

Re:Can anyone here see a problem? (1)

IAmTheDave (746256) | more than 8 years ago | (#14318751)

The way I see it, Sony breached a contract. This is easily resolved in court, and anyone who had their contract breached by Sony should go ahead and file an independent lawsuit (not a class action lawsuit). You can hire a local attorney and move forward.

Yeah, but as is the subject of about half of the postings on Slashdot, those with money can handle suits, those without cannot. Here the state is saying that they have the size to actually take on Sony and stand up for blanket violations against the general populous of the state. Me and my $20/hour attorney (because I can't afford more, and probably barely that) will never have the ability to take on the likes of Sony, no matter what wrongdoing they've wrong-done.

They're going to fight Sony with millions of taxpayer dollars, and if they win, the taxpayers won't see a cent, but a bunch of state lawyers and Sony lawyers will be wealthier

You're right about that one. Makes me nuts. "We're suing on behalf of the people, but we're keeping the winnings." Although on the other hand, if they spend millions to sue and gain millions, does it not both punish Sony but also replace int the coffers the original tax dollars spent? So in essence, the people do see the money, because it helps replace the money that could have been otherwise spent on improvement projects. I dunno, I'm conflicted.

FYI, for other anarchocapitalists out there, my solution is true moderated arbitration mechanisms in a free market, not the law or the courts.

And communism looks great on paper.

Let us return to the days when the law was simple to read, and simple to enforce.

Idealism is sweet. But politicians exist to create laws - it's how they prove that they're actually doing something in Congress (or wherever they are.) So as long as there are politicians, and as long as there are special interests and lobbying, there will be more laws.

Re:Can anyone here see a problem? (2, Insightful)

GreyPoopon (411036) | more than 8 years ago | (#14318756)

The way I see it, Sony breached a contract. This is easily resolved in court, and anyone who had their contract breached by Sony should go ahead and file an independent lawsuit (not a class action lawsuit). You can hire a local attorney and move forward.

Just for the record, I agree with the rest of your post. However, this isn't a mere violation of contract. You see, a contract was never made. In this case, the user refused to "sign" the "contract" (although I'm not really agreeing that a EULA is a valid contract...). Despite the fact that the user did not enter into a contract, Sony still "trespassed" on their system. Honestly, this case could be prosecuted in a myriad of ways in a criminal court. It could be considered trespassing, vandalism, espionage, deceptive trade practices, and several more outlandish violations of the law.

Re:Can anyone here see a problem? (2, Interesting)

dada21 (163177) | more than 8 years ago | (#14318815)

Just for the record, I agree with the rest of your post. However, this isn't a mere violation of contract. You see, a contract was never made. In this case, the user refused to "sign" the "contract" (although I'm not really agreeing that a EULA is a valid contract...). Despite the fact that the user did not enter into a contract, Sony still "trespassed" on their system. Honestly, this case could be prosecuted in a myriad of ways in a criminal court. It could be considered trespassing, vandalism, espionage, deceptive trade practices, and several more outlandish violations of the law.

I had about 5 similar replies, but I'll only reply to one (for now).

I believe, fully, that the contract between a consumer and a manufacturer should actually be created through the retail outlet. I'm not talking about a "de facto" type agreement that is binding always and every time. I mean a contract that basically stipulates that what I am buying will do no harm without warning me, unless I am at fault for using the item incorrectly. If it does, we have the retailer to go after.

I've spoken with 5 free market law groups (one being http://www.ij.org/ [ij.org] ) and from what I can tell, we should be suing the retailer, not Sony. The retailer has sold a product that was unsafe for the purchasing party, and the retailer should be responsible.

The reason? Retailers (I own 2 stores) should check their product before selling it -- IF the contract with the purchaser stipulates this. In a free market, I believe we'd see such stipulations. In a heavily regulated one, government has allowed everyone to be protected EXCEPT the consumer. In cses where the consumers are hurt in large numbers, they have almost no ability to find restitution.

Re:Can anyone here see a problem? (2, Interesting)

thebdj (768618) | more than 8 years ago | (#14318949)

Blaming retailers is a bit like shooting the messenger. Why should we have to go after the middle man when in reality the company who performed the harmful act was the distributor (in this case Sony)?

Based on your slightly thawed theory, if I purchased item X. Now it is possible that 1 out of every 1,000,000 has a defect that might be potentially harmful. So, if I am the unfortunate individual who gets that one and suffer serious injury the blame is on the retailer not the manufacturer? This makes no sense at all. You, as a retailer, cannot be responsible for testing every unit you sale and you would actually be more likely to get in trouble if people found out because they would say you are selling used merchandise as new.

Now, the case of Sony is a bit different; however, it should not be the responsibility of the retailer to police the manufacturers and none of the majors ones will do it, because they will probably be threatened with having their supply of future products cut off. My example is what happens when you start down the slippery slope by moving blame away from companies like Sony. If you seriously do believe this policy you mention, then please tell me what stores you own so we can have this conversation again after someone sues you for selling that harmful product.

Re:Can anyone here see a problem? (1)

GigsVT (208848) | more than 8 years ago | (#14319020)

I see no reason why the criminal suit against Sony needs to be mutually exclusive with individual civil suits against retailers for selling defective and damaging products.

Re:Can anyone here see a problem? (-1, Flamebait)

dmatos (232892) | more than 8 years ago | (#14318799)

I thought your president was a random person with a 3rd grade education . . .

Re:Can anyone here see a problem? (0, Offtopic)

dmatos (232892) | more than 8 years ago | (#14318893)

Aw, geez. Flamebait. Are we not allowed to bash Dubya on here any more? Fine, I'm taking my ball and going home.

Re:Can anyone here see a problem? (-1, Troll)

enko (802740) | more than 8 years ago | (#14318874)

only can pass with a signature of the President and a signature of a random person with a 3rd grade education who agrees that even they understand the law?

What's the difference?

Re:Can anyone here see a problem? (4, Insightful)

node 3 (115640) | more than 8 years ago | (#14318899)

Oh, so the state was hurt, and they're the ones who have to go after Sony?

The State (in America) is us. It's We The People.

The way I see it, Sony breached a contract. This is easily resolved in court, and anyone who had their contract breached by Sony should go ahead and file an independent lawsuit (not a class action lawsuit). You can hire a local attorney and move forward.

That worked so well with the Linux geeks who tried to return Windows per the OEM EULA.

Oh, wait. No, it didn't.

But it's worse than that. Let's assume you manage to design a low-cost way for individuals to sue a large corporation, how many people are actually going to sue Sony? Not many. So Sony will just eat the cost of a few lawsuits, and continue as usual.

Do you really expect people to sue over every little transgression? Do you have the time to be diligent over every EULA, every "implied" contract in your everyday life? Odds are you don't. That's what the State is for (in the US), to look after our collective interests. Doesn't always work out that way, but it does work out better than without the State. There are also Class Action suits, which are not necessarily brought on by a State, but are backed by the State, so the effect(collective power, backed by the State) is the same.

Who is with me in asking for an amendment limiting all laws to one topic, 200 words or less, and only can pass with a signature of the President and a signature of a random person with a 3rd grade education who agrees that even they understand the law?

Not I. Your post is more than 200 words. Do you think it's complex enough to cover questions like automobile operation? Building codes?

Laws can't be as simple as "thou shalt not kill", because sometimes thou shall kill. And sometimes different types of killing are met with differing levels of "shalt not".

The law is a mockery of justice today, and there is ZERO way for any individual or small group to win in the long run.

Under the current Republican House, Senate, and Presidency, that's become ever more true. They are systematically removing the rights of the people, and empowering the corporation. It's disgusting.

FYI, for other anarchocapitalists out there, my solution is true moderated arbitration mechanisms in a free market, not the law or the courts.

There is no such thing as the Free Market. Laws and Courts are required to prevent Capitalism from reverting to the Law of the Jungle.

Re:Can anyone here see a problem? (2, Interesting)

Guppy06 (410832) | more than 8 years ago | (#14319033)

"Oh, so the state was hurt, and they're the ones who have to go after Sony?"

Ignoring for the moment the potential harm done to computers owned and operated by the state government, the state, as a republic, is required to represent the interests of the people.

"The way I see it, Sony breached a contract."

With whom? The people who declined?

"This is easily resolved in court, and anyone who had their contract breached by Sony should go ahead and file an independent lawsuit"

So then you are in favor of Sony playing the odds. Unless enough individuals come forward and (successfully) sue Sony for this, Sony will see a net gain from their illicit efforts, and others will likely follow suit.

This is exactly the same mechanic that perpetuates spam. How's your inbox looking?

"The problem is that contract law is too complicated, and you can't fight a contract violation in court without a contract lawyer who likely is part of an organization that wrote the law."

Without law on what may or may not be included in a contract, what do you propose to do to keep contracts from being "too complicated?"

"Who is with me in asking for an amendment limiting all laws to one topic, 200 words or less,"

I challenege you to, in 200 words or less, write a law that defines murder in such a way that includes things like murder-for-hire, and differentiates it from accidental death, unless that death was through criminal negligence (and defining "criminal negligence"), differentiate between classifications of murder by how heinous they are (e. g. was there rape involved?), and specify different punishments for each classification while allowing the judge leeway for sentencing.

"my solution is true moderated arbitration mechanisms in a free market,"

So he who has the money to buy favorable arbitration wins?

Re:Can anyone here see a problem? (1)

servognome (738846) | more than 8 years ago | (#14319042)

Wait, it is costly to sue a big company? Might that be due to the laws created in your state? Might that be due to the lawyers in control of the operation of the law?

No, you can take them to court without an attorney.

The system isn't by the People for the People any more.

Name me a time and system that truly was by the People for the People? All systems are founded by the wealthy & powerful.

The system isn't by the People for the People any more.

Simple to read makes it more difficult to enforce consistantly. Unless you specifically address things you wind up with more and more loop-holes.

Heh. (5, Funny)

jacobcaz (91509) | more than 8 years ago | (#14318640)

By clicking "Agree" below, you agree to the terms of this EULA. By clicking "Decline" below, you agree to the terms of this EULA.

[ AGREE ] [ DECLINE ]

Re:Heh. (1)

BushCheney08 (917605) | more than 8 years ago | (#14318689)

Dude, you forgot to linkify your buttons...

EULAs are stupid... (1)

IAAP (937607) | more than 8 years ago | (#14318690)

I really hate it that in order to install software, you HAVE to agree to the EULA. BUT, if you don't agree, the software doesn't install and you can't return the software to the store. So basically, you have no choice but to accept the EULA or eat the cost of the software. Very unfair. As a result, I just click OK and the software vendors can kiss my ass about the EULA. As far as I'm concerned, it's meaningless and if they have a problem, they'll have to come and get me.

Re:EULAs are stupid... (1)

click2005 (921437) | more than 8 years ago | (#14318767)

They've probably changed it now but the MS EULA used to allow you to get a refund if you didn't agree to the EULA.

http://www.netcraft.com.au/geoffrey/toshiba.html [netcraft.com.au]

The problem was getting the money back.

Re:EULAs are stupid... (2, Informative)

AKAImBatman (238306) | more than 8 years ago | (#14318779)

UT, if you don't agree, the software doesn't install and you can't return the software to the store.

That's news to me. Most EULAs I've read on shrink wrapped software state that you can return the software for a full refund if you don't agree with the terms and conditions. If the store won't accept the return due to some stupid policy, then contact the software maker directly for your refund.

Re:EULAs are stupid... (2, Insightful)

eosp (885380) | more than 8 years ago | (#14318872)

start: Automated Help Desk and then a person 2 min later: "I'm sorry, but for refunds, you must go to the store of purchase. Store: "You opened it, no refund. Talk to the manufacturer. goto start

Re:EULAs are stupid... (0)

AKAImBatman (238306) | more than 8 years ago | (#14319022)

Step 3: Contact a lawyers office and get a class action suit going against both of them.
Step 4: ???
Step 5: Profit!

Re:Heh. (1)

Prophet of Nixon (842081) | more than 8 years ago | (#14318816)

My dad used to try and do that to me with coin flips:

"Heads I win, tails you lose!"

Fortunately, I'm slightly less stupid than he thinks I am.

Re:Heh. (0)

Anonymous Coward | more than 8 years ago | (#14318821)

By clicking "Agree" below, you agree to the terms of this EULA. By clicking "Decline" below, you agree to the terms of this EULA.

[ AGREE ] [ DECLINE ]

Ctrl-Alt-Del

Re:Heh. (1)

cez (539085) | more than 8 years ago | (#14318822)

What folks seem to overlook is the fact that Sony, the corporate entity itself, is a chick. And No means Yes.

Re:Heh. (1)

keithhackworth (902524) | more than 8 years ago | (#14318996)

More like:
By clicking "OK" below, you agree to the terms of this EULA.

[OK]

(and the X in the corner of the window is missing)

Keith

Feds dropping the ball? (5, Insightful)

cez (539085) | more than 8 years ago | (#14318646)

Shouldn't these charges also be mirrored by the feds seeing how Sony is an international company who's crossed state lines with malicious code?

Well, that depends... (5, Insightful)

Concern (819622) | more than 8 years ago | (#14318789)

If it were me who tried to install spyware on people's PC's using music CDs, the answer would be yes.

On the other hand, if it were a wealthy multinational corporation who did so, the answer would be... perhaps we can find a discrete settlement to avoid any discomfort to our most valued citizens.

Re:Feds dropping the ball? (1)

Guppy06 (410832) | more than 8 years ago | (#14318859)

Sony is a member of both the MPAA and the RIAA, and therefore has Congress in their back pocket. There is little, however, the state legislatures can do for them, so they don't have any lobbying industry in place in Austin to stop this sort of thing.

Re:Feds dropping the ball? (3, Insightful)

Raul654 (453029) | more than 8 years ago | (#14318875)

You are assuming that the DOJ is willing to go after corportations that audaciously break the law. They're too busy sending college students to prison for file sharing, modders for installing mod chips, 'etc. The administration clearly has a corporation-friendly agenda and has no intention of filing such a case.

So much for the validity of EULA's... (1)

Akardam (186995) | more than 8 years ago | (#14318649)

Just speculation, but if the software is installed even if the EULA is rejected, could not one point to that and say, hey, you installed the software even after we said no to the license, so I guess you think the license doesn't mean anything, eh?

Re:So much for the validity of EULA's... (1)

stunt_penguin (906223) | more than 8 years ago | (#14318754)

Interesting point- how do they expect us to abide by the licensing agreement in their music when they break their own software license agreements. The two agreements probably aren't one in the same though, so even though they break one, it doesn't mean we can break the other.

I propose selling pirated copies of Sony's DRMd CDs outside congress to see if this would hold up, because if it doesn't hold up then you'll have a pack of lawyers fighting each other to be the first to sue you withing .2194 * 10^-12 seconds. Or sooner.

While I'm pleased I suppose... (5, Interesting)

Concern (819622) | more than 8 years ago | (#14318652)

...this is a bit ridiculous on its face. Sure the spyware is illegal in about a dozen different ways (depending on your state) but... this all hinges on whether or not we accept or decline a EULA? How does that make sense?

That kind of reasoning by implication gives EULAs legitimacy which THEY DO NOT HAVE.

Since when under common law do we have such outrageously elaborate and suprising binding legal agreements by parties without equal representation?

Since when can agreement be given by pressing a mouse button or removing shrinkwrap?

The EULA itself is an ugly audacious legal fiction... this is why they needed UCITA to attempt to legitimize them after the fact.

Re:While I'm pleased I suppose... (1)

Tim C (15259) | more than 8 years ago | (#14318713)

How does that make sense?

If the software can be installed without agreement, then the EULA can't be binding. If the EULA is binding, then Sony are in violation of the EULA. Either way, they're screwed.

(Disclaimer: IANAL, etc)

Re:While I'm pleased I suppose... (1)

pvt_medic (715692) | more than 8 years ago | (#14318770)

No real challenge is made to these. I'll compare it to a medical model (While I know there are differences in how one can consent to things in medical and legal basis).
Medically you need
-Of legal age (This would apply... how many people have their kids install software on their computer because they cant or dont know how).
-Mentally Competent (Eh... too easy)
-Free of drugs or alcohol, etc. (Again too easy)
-In terms they can understand (Im not a lawyer, i might be able to understand that contract if i had one, or a dictionary).

So the question is (any lawyers out there want to clarify) how many of these items are needed for a contract. I am guessing age, and mentally competent. But the big one is terms they can understand???

Re:While I'm pleased I suppose... (4, Informative)

LexNaturalis (895838) | more than 8 years ago | (#14318783)

I think it's just another straw in the pile. This just adds another charge against the company that they will have to defend themselves against. The other charges don't hinge on the EULA issue at all; the rootkit is still illegal. This is simply ANOTHER thing they are adding. So even if the rootkit is found to be legal, they can still be nailed with this charge.

From my law classes, my lawyer professors told me that a favorite trick of lawyers is to allege as many possible crimes/violations as possible so as to make the other side more likely to either plea bargain or settle as well as to raise the chances of successfully arguing at least ONE of the charges/torts.

(Disclaimer: IANAL, just had some law classes)

Re:While I'm pleased I suppose... (1)

SengirV (203400) | more than 8 years ago | (#14318895)

Thank you for your voice of reason in this sea of insanity.

Re:While I'm pleased I suppose... (1)

Apreche (239272) | more than 8 years ago | (#14318968)

Sure, I don't think EULA's actually should carry legal weight. But you know what, I don't care either way. The problem here is that we haven't 100% decided if they are or are not legally binding contracts.

If they aren't, we win.

If they are, we also win. Nobody reads the damn things. We can just start putting EULAs on software that have outrageous things like agreeing to give money, technology, property, sexual favors and other things to the developers (us).

It doesn't matter which way, as long as they pick a way and stick with it.

It's only fair (5, Insightful)

goombah99 (560566) | more than 8 years ago | (#14318656)

I click through EULAs because I dont think they have any legal weight. Sony in turn ignores my requests not to install since they don't think EULA's have any legal weight. In sshort the 'A' in EULA is not an agreement, meeting of minds, or a legal contract. I'm fine with that I guess. Those privacy rights were unenforcable anyhow so I lose nothing.

Re:It's only fair (1, Funny)

Izmir Stinger (876148) | more than 8 years ago | (#14318704)

End User Licence Assumption

Hah! :) (1, Funny)

Concern (819622) | more than 8 years ago | (#14318768)

Egregious Unbelievable Lawyer Audacity

Re:It's only fair (1)

Dachannien (617929) | more than 8 years ago | (#14318989)

I click through EULAs because I dont think they have any legal weight.

You should be careful about this philosophy, because courts have held that, in general, there is nothing wrong with EULAs. In specific cases, though, such as shrink-wrap EULAs, where the person has to buy the software before getting to read the EULA, and has no recourse if they decline the agreement; or click-past EULAs, where the person isn't actually required to consent to the EULA before they get to use the product; or particular EULA clauses that do things like try to restrict the first-sale doctrine; courts have struck down individual clauses or held the EULA to be nonbinding.

http://www.fairterms.org/pdf/EULAcases.pdf [fairterms.org]

Continual Sony Bashing (1)

shoolz (752000) | more than 8 years ago | (#14318659)

Normally, I don't like to see stories like this go on ad-nauseum, but in this case, I relish seeing Sony getting repeatedly pummeled in the news and across the blog landscape.

The longer this trainwreck of a DRM debacle goes on, the happier I get. I know... it's kind of like a disease.

If only... (4, Funny)

Anonymous Coward | more than 8 years ago | (#14318661)

Now if only the death penalty in Texas applied to corporations...

Re:If only... (0)

Spock the Baptist (455355) | more than 8 years ago | (#14318701)

Dude, we're working on it!

Indie Music (4, Interesting)

jhouserizer (616566) | more than 8 years ago | (#14318667)

Sure am glad I've only purchased indie cd's in the last few years! Apparently not only do the big companies cram crappy music down your ears, but they also cram crappy software into your computer.

Re:Indie Music (0, Insightful)

Anonymous Coward | more than 8 years ago | (#14318881)

coz there isn't any crap on indie labels?
come on now....

Re:Indie Music (0)

Anonymous Coward | more than 8 years ago | (#14318911)

You sound familiar. Are you Jonathan Green [theonion.com] ?

Sony and DMCA (-1, Offtopic)

Anonymous Coward | more than 8 years ago | (#14318669)

Why isn't anyone in the mainstream talking about how M$, Network Associates and McAfee violated the DMCA by providing removal tools for this Sony garbage?

Re:Sony and DMCA (1)

91degrees (207121) | more than 8 years ago | (#14318936)

Because they didn't violate the DMCA. They have a reasonable argument for the legitimacy of their software that doesn't involve circumvention of a device to control access to a protected work. It does circumvent the device, it is true, but this is simply a side effect of remviong software that degrade's the computer's security.

Re:Sony and DMCA - Don't forget (3, Insightful)

Nom du Keyboard (633989) | more than 8 years ago | (#14319002)

remviong software that degrade's the computer's security.

And Performance. Don't forget this thing can end up running continuously consumung both memory and cpu cycles.

Wasn't this known before? (0)

Anonymous Coward | more than 8 years ago | (#14318676)

I thought this was already revealed a week or so after this whole DRM story broke?

I have to ask....... (2, Funny)

stunt_penguin (906223) | more than 8 years ago | (#14318679)

Is anyone surprised?

*Wind howling*
*Dogs barking in the distance*
*Tumbleweed passes*
*Chuch bell tolls in the next town*

No I didn't think so either.

Re:I have to ask....... (0)

Anonymous Coward | more than 8 years ago | (#14318747)

You forgot about the chirping crickets! Never forget the chirping crickets!

Open Season (1)

pvt_medic (715692) | more than 8 years ago | (#14318681)

Oh let the lawsuits start a rolling. I would be very disappointed if ever state did not take action here. This is clearly illegal, and the government needs to take action to demonstrate this is not acceptable and that proper punishment is handed out (I wouldnt mind having a couple people go to jail to)

This is probably hurting Sony in sales from nerds (4, Interesting)

EvilMonkeySlayer (826044) | more than 8 years ago | (#14318682)

For example, I was planning on buying a new widescreen tv and a psp, but because of the rootkit etc I decided against a Sony tv and i'm probably going to buy either a Nintendo DS or the GPX2.

I wonder, if Sony has lost any sales because of this. Just how much in cash it has cost them?

Re:This is probably hurting Sony in sales from ner (1)

mrm677 (456727) | more than 8 years ago | (#14318711)

Right, and nerds who read Slashdot constitute maybe 0.01% of the U.S. population?? And those who really care are probably a fraction of that.

Re:This is probably hurting Sony in sales from ner (1)

91degrees (207121) | more than 8 years ago | (#14318986)

It's not just nerds who read Slashdot. This was reported all over the place.

It's also not just the US population.

And at least some people have decided not to purchase Sony equipment. I decided not to get myself a PSP. Maybe on its own, this sort of thing isn't going to be noticable on their balance sheet, but if they keep pulling this kind of stunt, more ethical companies will have that small advantage that may give them the lead.

Re:This is probably hurting Sony in sales from ner (1)

kcarlin (99704) | more than 8 years ago | (#14318969)

For example, I was planning on buying a new widescreen tv and a psp, but because of the rootkit etc I decided against a Sony tv and i'm probably going to buy either a Nintendo DS or the GPX2.

I wonder, if Sony has lost any sales because of this. Just how much in cash it has cost them?


I too dropped any plans to buy Sony products, and removed their products from my wish list and explained to people I usually exchange gifts with why. I expect that that response is common on /. It is especially annoying because I have been a satisfied customer for decades and now I have to learn to shop again. And it's all changed.

SELECT manufacturer FROM manufacturerTable WHERE (name 'SONY') AND NOT riaaMember AND (quality > sucks);

can this be used the other way round... (1)

hihihihi (940800) | more than 8 years ago | (#14318693)

can they just go around breaking every statement of EULA... as it has been already been declined by the user but the s/w is on computer...

To save some clicking (5, Informative)

kawika (87069) | more than 8 years ago | (#14318696)

This is the original blog [freedom-to-tinker.com] that revealed the SunnComm DRM installed despite the user declining the EULA. Whereas the XCP DRM could hide behind the EULA excuse, I don't see how SunnComm has any legal fig leaf here (though IANAL).

Supposedly there is about ten times [com.com] more SunnComm DRM in the wild than XCP DRM, so maybe Sony felt they couldn't sacrifice holiday sales despite the legal exposure.

Oh, come on! (-1, Redundant)

Anonymous Coward | more than 8 years ago | (#14318702)

They're just doing this to protect themselves! Nobody puts a disc in their computer unless they want to rip it and share it with as many people as possible over the internet! Sony's not the bad guy here, it's the internet users!

Lawsuit (5, Funny)

Council (514577) | more than 8 years ago | (#14318703)

Sony is complaining that although they declined the offer to be sued, the Texas AG is still pursuing the case.

"Cancel" != "Decline EULA" (1)

Wootzor von Leetenha (938602) | more than 8 years ago | (#14318705)

By sheer coincidence, when most software is being installed, declining the EULA will stop installation. I don't think it's a law, it's more at the software company's discretion. They have to determine if the user MUST accept in order to use their software. In this case, they just put in a EULA for some recommended leisure reading before installing

Re:"Cancel" != "Decline EULA" (5, Insightful)

10101001 10101001 (732688) | more than 8 years ago | (#14318907)

Yes and no. You see, there's state and federal laws against computer trespassing. This means that if there's any legitimate use for an EULA, it's to basically indemnify the company by making it clear that the user intentionally installed software. This means that if software is installed regardless, there's a valid basis for computer trespassing--note, this is true if one manages to bypass the EULA, as well. Computer trespassing laws are generally very vague and badly written, so only something like an EULA really will protect an entity from prosecution under them. At least in this case, were someone was specifically presented the EULA and did not agree to it while software is installed anyways, there's no way to somehow misinterpret the letter or the spirit of the law to not take it as computer trespassing, unlike with intentionally bypassing or hacking an EULA to install software without agreeing to it.

Dupe? (-1, Offtopic)

19061969 (939279) | more than 8 years ago | (#14318732)

Isn't this a dupe? I'm sure I read about this weeks ago...

Anyway, what is the legal difference between the Sony software and any old spyware that installs itself without permission? Surely this puts Sony on a level with spyware makers and virus writers. The difference is that they are a corporation and we have addresses...

Yeah, I know the software was written by someone else, but Sony commissioned / bought / paid for it and willingly spread it around. I think criminal charges should be brought for this kind of thing. If some basement cracker had done it, he would be facing a jail term.

Not a Virus? (5, Insightful)

DeanFox (729620) | more than 8 years ago | (#14318746)


FTA: "The creator of the copy-protection software, a British company called First 4 Internet, said the cloaking mechanism was not a risk. The company's team has worked regularly with big antivirus companies to ensure the safety of its software, and to make sure it is not picked up as a virus, he said."

First of all, I would like to know who these "big antivirus" companies are so I can stop using their product (assuming I might be). That or to make sure I never use or recommend them to others'.

We are in trouble when antivirus companies are in backroom negotiations with virus makers, I assume for profit, not to detect one virus in favor of another.

How can I trust they haven't negotiated other backroom deals with virus/spyware writers that let other viruses and spyware on my machine?

I want to know who these "anti" virus companies are!

Re:Not a Virus? (1)

Sirch (82595) | more than 8 years ago | (#14318818)

It's not a virus! It doesn't replicate!

A Trojan, perhaps, malware definitely, but not a virus...

Is this true? (1)

DRAGONWEEZEL (125809) | more than 8 years ago | (#14318748)

I haven't obtained a new CD in ages, but if this is true, I hope SONY & their Spyware Partner MediaMax take a good fall for this. The funy thing is everyone calling it a
"R00+ ||+." but if it's installing with / without EULA, then I guess it pretty much is a rootkit. /*conspiracy theory*/
I would be highly interested to see if the exploit code for it was "leaked" somewhere by a MediaMax employee. Maybe some programmer had it out for Sony? /* end conspiracy theory */

This is just making things worse (0)

Anonymous Coward | more than 8 years ago | (#14318772)

The "I no longer want to buy this kind of music! Screw CD's, hello iTunes!" crowd just keep getting more ammo. However, I view this as far more harmful to the general cause of the music industry as a whole, rather than the demonization of a single company. I really think that this is one less block in an already shakey Janga Tower of the music industry's construction.

Also, though the class action suit is well meant, I feel it's out of place (as was mentioned earlier).

Does this ever end? (2, Funny)

SmallOak (869450) | more than 8 years ago | (#14318780)

Each time I think I Sony could not have made this any worst, something like this comes up. I fully expect to hear that if you run the software backwards it says something satanic.

Obligatory Old Joke (2, Funny)

eosp (885380) | more than 8 years ago | (#14318941)

Person: "Did you hear if you play your Windows CD backwards it plays Satanic music?"

Me: "Oh that's nothing. If you play it forward it installs Windows."

Re:Does this ever end? (-1)

Anonymous Coward | more than 8 years ago | (#14318957)

hahahaha ROFLMAO.

Let me get this straight (1)

Big Smirk (692056) | more than 8 years ago | (#14318782)

Sony has a piece of DRM software, that when installed, allows me to play the tracks off one of thier mixed-mode CDs?

Seems to me someone could easily reverse engineer (remember not to agree to any silly Eula) and build an equivalent piece of software that can bypass any DRM attempt.

So, what do I google for?

Re:Let me get this straight (2, Informative)

WidescreenFreak (830043) | more than 8 years ago | (#14318933)

Seems to me someone could easily reverse engineer (remember not to agree to any silly Eula) and build an equivalent piece of software that can bypass any DRM attempt.

Um ... the Shift key has existed on keyboards since the typewriter as far as I know, and Windows has stopped the autorun when holding down Shift for quite some time. It's prevented all auto-installing DRM that I've ever run across from installing itself on my PC.

I've also been able to avoid DRM on my system by not using or installing anything that I know has DRM associated with it, like Media Player and iTunes. CDex, WinAmp, and the Shift key are the Three Amigos for just about every audio CD out there.

So, I don't know what you're going on about. The technology has been available for a while. :P

EULA makes no difference (5, Informative)

FreeBSD evangelist (873412) | more than 8 years ago | (#14318851)

I have an RCA Victor (one of Sony/BMG's brands) with MediaMax. It absolutely installs software on your computer, even =before= the EULA response box pops up.

I love the smell of hypocrisy in the morning (1)

slushbat (777142) | more than 8 years ago | (#14318853)

Could it be that the people cheering for Sony getting punished for breaking US laws are the same as those howling about Microsoft getting punished for breaking EU laws.

Re:I love the smell of hypocrisy in the morning (1)

Austerity Empowers (669817) | more than 8 years ago | (#14318982)

Nope, I think you're mostly wrong on that. I think most of us are happy on both counts. I think I understand the MS in EU case the least, but I can be happy that they're getting spanked and not worry about it.

Corporate Anarchy (5, Insightful)

Beerden (874601) | more than 8 years ago | (#14318856)

We live in the age of Corporate Anarchy. A Corporation has had, in the past, essentially the same rights as an individual human. Now, however, individual rights have been taken away, yet the Corporation is free to do what it pleases. Corporations like SONY feel they are above the law, and are now testing to see how far they can go. After Corporate Anarchy comes Corporate Rule. I would not shed a tear if the Individuals were to blow up Corporate buildings, clean out Corporate bank accounts, and fight in a [very bloody] Revolution against Government and Corporation (war against Facism, in other words). Civil war, if you could call it that, but more like the French Revolution. I think there is no other way around it, because History shows us that it will happen.

Re:Corporate Anarchy (-1)

Anonymous Coward | more than 8 years ago | (#14319026)

Dude, lay off the bong for a little while before you post.

Not the way to fight EULAs (1)

Scarblac (122480) | more than 8 years ago | (#14318896)

Personally, I think EULAs are completely unenforcable; I bought some piece of software, I should be allowed to use that piece of software without agreeing to anything else. In my view, software should install without any problem if I choose to decline the EULA.

Now of course this is a rootkit, not something you bought, nobody wants on their computer and so on, but then sue them for that. I'd rather see some software maker sued because their software didn't install when the user declined the EULA, than the other way around.

Re:Not the way to fight EULAs (0)

Anonymous Coward | more than 8 years ago | (#14319031)

Agreed.

There should only be 2 types of EULAs:

1. A EULA that you have to agree to before you can purchase/obtain the software. Either before you place an order online or before you cash out at a store.

2. During installation but that only applies to support. Meaning, if you disagree the software will still be installed but you may forfit your right to support since support is something external to the software.

So basically, once you have obtained the software, you should be able to install it without agreeing to a EULA

And you're surprised... (1)

Nom du Keyboard (633989) | more than 8 years ago | (#14318934)

Sony DRM Installed Even When EULA Declined

And you're surprised because...?

No one would agree to having this put on their computer if they actually knew what it was. So Sony has to sneak it on when you're not looking.

I would like the settlement for this make their recent $10M payola penality look like peanuts -- or Bill Gate's pocket change.

Sony needs to go down!

Copyright infringment! (3, Interesting)

Zebadias (861722) | more than 8 years ago | (#14318977)

What I want to know - when is someone going to go after Sony for the infringment of the GPL! That is the greater offence in my mind!

List of Effected CD's (4, Informative)

dbucowboy (891058) | more than 8 years ago | (#14318998)

I found this online, it's a list of CD's that have the DRM... don't remember where and I don't know if it's totally accurate but I think it serves as a good list of CD's to be suspicious of. Foo Fighters - In Your Honour Van Zant - Get Right with the Man Ricky Martin - Life Sarah McLachlan - Bloom Remix Album Celine Dion - On Ne Change Pas Neil Diamond - 12 Songs Natasha Bedingfield - Unwritten Kings of Leon - Aha Shake Heartbreak Santana - All That I Am Chris Botti - To Love Again Switchfoot - Nothing Is Sound Patty Loveless - Dreamin' My Dreams Montgomery Gentry - Something To Be Proud Of: The Best of 1999-2005 Mary Mary - Mary Mary My Morning Jacket - Z David Gray - Life In Slow Motion Bob Brookmeyer - Bob Brookmeyer & Friends Shelly Fairchild - Ride Kasabian - Kasbian Pete Seeger - The Essential Pete Seeger The Bad Plus - Suspicious Activity Elkland - Golden Susie Suh - Susie Suh Buddy Jewel - Times Like These Chayanne - Cautivo A Static Lullaby - Faso Latido Our Lady Peace - Healthy In Paranoid Times The Coral - The Invisible Invasion Dexter Gordon - Manhattan Symphonie Acceptance - Phantoms Dion - The Essential Dion The Dead 60s - The Dead 60s Goapele - Change It All Los Lonely Boys - TBD Life of Agony - Broken Valley George Jones - My Very Special Guests Horace Silver - Silver's Blue Amici Forever - Defined Ahmed Jamal - The Legendary Okeh and Epic Recordings Anna Nalick - Wreck of the Day Hitch - Soundtrack Charlotte Martin - On Your Shore Vivian Green - Vivian Raheem DeVaughn - The Love Experience Amerie - Touch Nivea - Complicated Mario - Turning Point G3 - Live In Tokyo

Sony pwnage (3, Interesting)

Mulletproof (513805) | more than 8 years ago | (#14319036)

"'The Texas attorney general said on Wednesday that he added a new claim to a lawsuit charging Sony BMG Music Entertainment with violating the state's laws on deceptive trade practices by hiding 'spyware' on its compact discs"

Anybody else making the connection between this DRM tactic and those of the PSP, where Sony has plans to continuously update the DRM of the PSP with every new game release whether you like it or not. I'm sensing a disturbing trend- actually, it's been going on for quite some time now -in Sony's insistance on reguulating the hardware you already own contrary to your wishes.

Thankfully, their foothold on the PC industry is far less pervasive than it is in the console industry.
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