Rothken ClickRights Blog

The Sony Controversy and Digital Rights Management Legal Issues: Nothing New

I was going through our law firm archives this weekend looking through our previous consumer protection litigation regarding Digital Rights Management ("DRM") techniques used on music CDs and I realized something quite interesting - the same issues found in our lawsuit against Sunncomm from over four years ago (September 2001) are found regarding some of Sony's music CDs this year. Here is a copy of the Sunncomm lawsuit we filed from four years ago ComplaintDRM-CD.pdf - just plug in Sony's alleged DRM abuses du jour like root kit alterations, lack of notices, privacy intrusions and some class action allegations (due to the passage of proposition 64) and the same complaint may be good to go. In the Sunncomm case the same substantive allegations were made. To Sony's credit I heard they may have stopped producing music CDs with the "root kit" DRM technology. Regardless of which side one takes in the Sony DRM issue it seems to me that nothing is new here and Sony should have learned from the past if for no other reason than to avoid alienating their own customers and stimulating consumer protection lawsuits.

Balancing Digital Rights Management, Fair Use, and Privacy

According to numerous news stories - Sony in an effort to protect its Copyrighted music CDs seems to be pushing the envelope by employing digital rights management ("DRM") technology that is installed deep in the "root" of the Windows XP operating system and is very difficult to uninstall or remove.

This situation appears to be antagonized by the notion that the Sony DRM scheme is sending back data from consumers' computers to its server "mother-ship" acting like a de facto Trojan horse program. If the data it is sending back includes personal identifying information ("PII") like IP address or name or email address associated with click-stream and listening history there may be serious privacy rights legal issues that need to be addressed. Indeed, the DMCA may provide a safe harbor to bypassing copy protection schemes, like Sony's DRM, when privacy rights are implicated.

To be fair DRM, when used responsibly, can be a reasonable method to protect intellectual property rights. But as we are seeing one must balance the need for DRM with its impact on privacy and fair use - or consumers will vote with their pocketbooks by choosing other music CDs to buy.

We brought a case against Sunncomm (an early provider of DRM to the music industry) a number of years ago for their use of aggressive DRM on Charlie Pride CDs - the case was settled and the copy protection was ultimately removed. Here is a copy of the settlement agreement.

Welcome

Welcome to my blog!