* EFF Files Class Action Lawsuit Against Sony BMG
Company Should Repair Damage to Customers Caused by CD Software
San Francisco - The Electronic Frontier Foundation (EFF),
along with two leading national class action law firms, today
filed a lawsuit against Sony BMG, demanding that the company
repair the damage done by the First4Internet XCP and SunnComm
MediaMax software it included on over 24 million music CDs.
EFF is pleased that Sony BMG has taken steps in acknowledging
the security risks caused by the XCP CDs, including a recall
of the infected discs. However, these measures still fall
short of what the company needs to do to fix the problems
caused to customers by XCP, and Sony BMG has failed entirely
to respond to concerns about MediaMax, which affects over 20
million CDs -- ten times the number of CDs as the XCP
software.
Sony BMG is to be commended for its acknowledgment of the
serious security problems caused by its XCP software, but it
needs to go further to regain the public's trust," said
Corynne McSherry, EFF Staff Attorney. "It is unconscionable
for Sony BMG to refuse to respond to the privacy and other
problems created by the over 20 million CDs containing the
SunnComm software."
The suit, to be filed in Los Angeles County Superior court,
alleges that the XCP and SunnComm technologies have been
installed on the computers of millions of unsuspecting music
customers when they used their CDs on machines running the
Windows operating system. Researchers have shown that the XCP
technology was designed to have many of the qualities of a
"rootkit." It was written with the intent of concealing its
presence and operation from the owner of the computer, and
once installed, it degrades the performance of the machine,
opens new security vulnerabilities, and installs updates
through an Internet connection to Sony BMG's servers. The
nature of a rootkit makes it extremely difficult to remove,
often leaving reformatting the computer's hard drive as the
only solution. When Sony BMG offered a program to uninstall
the dangerous XCP software, researchers found that the
installer itself opened even more security vulnerabilities in
users' machines. Sony BMG has still refused to use its
marketing prowess to widely publicize its recall program to
reach the over 2 million XCP-infected customers, has failed
to compensate users whose computers were affected and has not
eliminated the outrageous terms found in its End User
Licensing Agreement (EULA).
The MediaMax software installed on over 20 million CDs has
different, but similarly troubling problems. It installs files
on the users' computers even if they click "no" on the EULA,
and it does not include a way to fully uninstall the program.
The software transmits data about users to SunnComm through an
Internet connection whenever purchasers listen to CDs,
allowing the company to track listening habits -- even though
the EULA states that the software will not be used to collect
personal information and SunnComm's website says "no
information is ever collected about you or your computer." If
users repeatedly requested an uninstaller for the MediaMax
software, they were eventually provided one, but they first
had to provide more personally identifying information. Worse,
security researchers recently determined that SunnComm's
uninstaller creates significant security risks for users, as
the XCP uninstaller did.
"Music fans shouldn't have to install potentially dangerous,
privacy intrusive software on their computers just to listen
to the music they've legitimately purchased," said EFF Legal
Director Cindy Cohn. "Regular CDs have a proven track record
-- no one has been exposed to viruses or spyware by playing a
regular audio CD on a computer. Why should legitimate
customers be guinea pigs for Sony BMG's experiments?"
"Consumers have a right to listen to the music they have
purchased in private, without record companies spying on their
listening habits with surreptitiously-installed programs,"
added EFF Staff Attorney Kurt Opsahl, "Between the privacy
invasions and computer security issues inherent in these
technologies, companies should consider whether the damage
done to consumer trust and their own public image is worth its
scant protection."
Both the XCP and MediaMax CDs include outrageous,
anti-consumer terms in their "clickwrap" EULAs. For example,
if purchasers declare personal bankruptcy, the EULA requires
them to delete any digital copies on their computers or
portable music players. The same is true if a customer's house
gets burglarized and his CDs stolen, since the EULA allows
purchasers to keep copies only so long as they retain physical
possession of the original CD. EFF is demanding that Sony BMG
remove these unconscionable terms from its EULAs.
The law firms of Green Welling, LLP, and Lerach, Coughlin,
Stoia, Geller, Rudman and Robbins, LLP, joined EFF in the
case. Sony BMG is also facing at least six other class action
lawsuits nationwide and an action by the Texas Attorney
General. EFF looks forward to representing the voice of
digital music fans in the resolution of these disputes between
Sony BMG and consumers.
For more on the Sony BMG litigation, see:
<
http://www.eff.org/IP/DRM/Sony-BMG/>
EFF's open letter to Sony:
<
http://www.eff.org/IP/DRM/Sony-BMG/?f=open-letter-2005-11-14.html>
~ Sony Crosses Wrong Man
Texas Attorney General goes after the Sony BMG rootkit.
<
http://www.oag.state.tx.us/oagnews/release.php?id=1266>
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