Re: EFF and Sony BMG Reach Preliminary Settlement

On the face of it, this settlement sounds like a step forward to improving 
the situation.  It seems much less encouraging after reading the actual 
terms of the provisional settlement at: 
http://www.sunbelt-software.com/ihs/alex/sonysettleme23423423434nt.pdf

One of the best sources of technical information on the issues with XCP 
was written in Mark Russinovich's blog.  For those not familar with Mark 
Russinovich, he is a member of Sysinternals and considered one of the best 
experts external to Microsoft on how the Windows kernel functions.  His 
qualifications become important for the context of his statements 
regarding XCP's methods of extending the Windows kernel (and Sony's method 
of uninstalling those extentions).


Issue 1) Mark Russinovich points out that XCP's poorly written code 
results in a 2% loss in computer performance, even when no CD is in use at 
all.  Sony has acknowledge in their marketing of the Sony Vaio that 
computer performance has a money value to it.  For example, when the 
largest selling point between two different Viao desktops is a 6% increase 
in computer cycles, Sony puts the value on it of $150 difference in 
retail price.

Issue 1 Provisional Settlement) Class members will be able to seek $7.50 
and download one additional album--not exactly an fair trade for a $50 cut 
in computer performance.


Issue 2) Several forums, including those that commented on Mark 
Russinovich's blog, have discussed XCP's Aries.sys resulting in crashing 
the computer, sometimes requiring a reinstall of Windows to resolve 
(several OEMs will instruct the user to use a Windows restoration CD to 
resolve frequent computer crashes).  Additionally, Mark Russinovich has 
pointed out that Sony's uninstaller itself can crash the computer.  The 
only safe way to "remove" the Windows extention is to unregister it and 
reboot.  Sony's uninstaller had attempted to force removal immediately 
which can trigger a race condition to crash the machine.  Mark Russinovich 
goes on to explain exactly how to uninstall safely.

Issue 2 Provisional Settlement) XCP victims that removed XCP by 
re-installing Windows are *EXCLUDED* from being Class members since they 
can't affirm to running the Sony provided XCP Uninstaller/Update to remove 
XCP.  Also, those that follow Mark Russinovich's advice on safely 
unregistering and deleting XCP are similarly excluded since they also can 
not affirm to running the XCP Uninstaller.  No where in the Provisional 
Settlement is Sony required to follow Mark Russinovich's advice on 
providing a reliable method of uninstalling XCP.  Yet to be a Class 
member, your still required to affirm that you ran this poorly coded 
uninstaller.


Issue 3) Both new and used XCP CDs continue to be distributed through 
smaller CD distributors.  Currently, Sony BMG's exchange form only allows 
up to 9 CDs of any one title to be exchange at a time and requires an up 
to 6 week waiting period.  For the majority of smaller CD distribution 
shops, this is little to no incentive for them to participate in having 
their inventory unavailable for 6 weeks.  While the settlement requires 
Sony to provide notification in major news papers, to quote Sony's own 
executive, "people don't know what a root kit is, and why sould it bother 
them?"  The notification required by the seattlement is likely to be 
ignored by the majority of readers.  Customers that buy used CDs are 
unlikely to be on the look-out to avoid XCP tainted CDs.

Issue 3 Provisional Settlement) The settlement focuses on encouraging 
exchange by "authorized resellers" (normally a term reserved for stores 
that sale brand new CDs) and individual customers.  It does not take into 
account at all that future computers will be exposed to the security 
issues of XCP because of the failure to recall all CDs are sold through 
used CD stores.


Issue 4) The XCP "copyright protection" system itself violates the 
licensing terms and copyright of LAME and VideoLAN Client.  Under the 
VideoLAN Client General Public License terms, XCP is a GPL derived work 
and distributors of XCP should provide the source code upon request. 
While some may argue that a poorly written DRM system should be elminated 
in all forms, the source code could be useful for other purposes even ones 
that have nothing to do with DRM.

Issue 4 Provisional Settlement) The LAME and VidioLAN Client authors are 
not represented at all in this court action.  No attempt to enforce the 
terms of the General Public License is made in the provisional settlement. 
Also, no attempt to get rewards in any form on behalf of either project is 
included in the the provisional settlement.  It appears that Copyright law 
only applies when it's violation hurts the bottom line for big business. 
While the RIAA needs to protect Sony from college students, the fact that 
Sony also violates copyright with XCP seems to have no impact on getting 
RIAA's Cary Sherman approval.  And court action seems to do nothing to 
correct that.


On Fri, 30 Dec 2005, Seth Johnson wrote:

> -------- Original Message --------
> Subject: EFF Media Advisory: EFF and Sony BMG Reach Preliminary
> Settlement
> Date: Thu, 29 Dec 2005 22:14:05 -0800
> From: EFF Press <[email protected]>
> To: [email protected]
>
> Electronic Frontier Foundation Media Advisory
>
> For Immediate Release: Thursday, December 29, 2005
>
> Contact:
>
> Cindy Cohn
>  Legal Director
>  Electronic Frontier Foundation
>  [email protected]
>  +1 415 436-9333 x108 (office), +1 415 307-2148 (cell)
>
> Corynne McSherry
>  Staff Attorney
>  Electronic Frontier Foundation
>  [email protected]
>  +1 415 436-9333 x122
>
> Kurt Opsahl
>  Staff Attorney
>  Electronic Frontier Foundation
>  [email protected]
>  +1 415 436 9333 x106
>
> Fred von Lohmann
>  Senior Intellectual Property Attorney
>  Electronic Frontier Foundation
>  [email protected]
>  +1 415 436-9333 x123 (office), +1 415 215-6087 (cell)
>
> EFF and Sony BMG Reach Preliminary Settlement over Flawed DRM
>
> New York - Electronic Frontier Foundation (EFF) joined in the
> preliminary settlement agreement with Sony BMG this week to
> settle several class action lawsuits filed due to Sony's use of
> flawed and overreaching computer program in millions of music CDs
> sold to the public. The proposed terms of settlement have been
> presented to the court for preliminary approval and will likely
> be considered in a hearing set for January 6, 2005 in federal
> court in New York City.
>
> "The proposed settlement will provide significant benefits for
> consumers who bought the flawed CDs," said EFF Legal Director
> Cindy Cohn. "Under the terms, those consumers will get what they
> thought they were buying--music that will play on their computers
> without restriction or security risk. EFF is continuing
> discussions with Sony BMG, however, and believes that there is
> more they can do to protect music lovers in the future."
>
> "Sony agreed to stop production of these flawed and ineffective
> DRM technologies," noted EFF Staff Attorney Kurt Opsahl. "We hope
> that other record labels will learn from Sony's hard experience
> and focus more on the carrot of quality music and less on the
> stick of copy protection."
>
> For this advisory:
> http://www.eff.org/news/archives/2005_12.php#004287
>
> About EFF
>
> The Electronic Frontier Foundation is the leading civil liberties
> organization working to protect rights in the digital world.
> Founded in 1990, EFF actively encourages and challenges industry
> and government to support free expression and privacy online. EFF
> is a member-supported organization and maintains one of the most
> linked-to websites in the world at http://www.eff.org/
>
>
>    -end-
>
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