Response to RJB: Clearing It Up

For those of you who may have missed it, here's a comment left by my buddy Ryan on Punish Sony Using the DMCA posting [Link].

I'm not a lawyer, but posts like yours make me wish I had some legal background. I found a logical disconnect.

Software licensing (including the GPL family) and copyrighting long predate the DMCA (1998). The LGPL, as I understand it, is little more than a copyright claim.

Why would we, the people of the United States, need the DMCA to prosecute this case? Stronger punishments? Intellectual property complications? As I see it, if copyright-restricted material is found in Sony's code, they're busted - DMCA or not.

If I'm oversimplifying or misunderstanding the issues at hand, please correct me.

Aye, yer right on some accounts, lad.

However, here's the deal. IANAL myself, but here it goes. The Copyright Law of the United States of America, Chapter 5,[Link] has a damages section where it lays out how much each infringment costs (in a "Damages" ruling) plus the profits made off of said infringement. Damages, as the document linked above states, should be not less than $750 and not more than $30,000, excepting cases where the court proves that the infringement was willfull, wherein the maximum amount of the damage award increases to $150,000.

"The copyright owner is entitled to recover the actual damages suffered by him or her as a result of the infringement, and any profits of the infringer that are attributable to the infringement and are not taken into account in computing the actual damages."

Now, that all sounds like a fine deal, but the DMCA's section on criminal violation of copyright (which this is, as profit was gained in the violation of copyright) beats the hell out of this with a gigantic 4x4. [Link] Chapter 12, section 1204, deals with the criminal offenses and penalties, defined below:

"(a) IN GENERAL- Any person who violates section 1201 or 1202 willfully and for purposes of commercial advantage or private financial gain--

`(1) shall be fined not more than $500,000 or imprisoned for not more than 5 years, or both, for the first offense; and

`(2) shall be fined not more than $1,000,000 or imprisoned for not more than 10 years, or both, for any subsequent offense."

Now remember, the DMCA was passed to amended title 17 of the US Code to extend the reach of copyright. Which means not only are they in violation of U.S. Copyright law, they are under violation of the DMCA, a special section of copyright law dealing with technology. Thanks to Sony's screw-up, we can use the law they helped push through to tighten their grip on their copyright against them. All because they violated a simple LGPL agreement.

I won't even go into the fact that when they started releasing a "fix" for the rootkit they were in violation of the DMCA for circumventing a copyright device, or that by having auto-run disabled on your CD-ROM and placing one of the infected CDs in your computer, you would also be in violation of the DMCA for circumventing a copyright device. {Think I'm kidding? I'm not... when you get a spare minute, read the DMCA [Secondary Link], it's scary as hell.)

So, to boil it all down to a quick, edible bite, they are in violation of copyright, and as Ryan correctly pointed out, copyright is much older than the DMCA. However, the DMCA covers just this sort of copyright violation, and is, in fact, an addendum to the US Copyright Law, and as such, is highly viable for use against Sony. The best part is the irony, though. Sweet, sweet irony.

Comments or questions anyone?

Punish Sony Under the DMCA

You regular readers know I'm not a huge fan of the DMCA, in as much as I think it's a draconian bit of law that should be wiped from the books. However, I am a huge fan of poetic justice, and I think our "pals" at Sony could use a bit of that right now. If the RIAA wants to hide behind the DMCA while suing the pants of it's customers, I think we, the people, should use the DMCA to put a hurtin' to Sony, as the kids say. Picked up from BoingBoing.net [Link]:

"Indications are that Sony has included the LAME music encoder, which is licensed under the Lesser General Public License (LGPL), which requires that those who use it attribute the original software and publish some of the code they write to use the library. Sony has done none of this."

Right then. According to the research that I have done on the DMCA, and the paper I did on it [Link], Sony could be punished under the DMCA and fined no more than $500,000 for the first offense and no more than $1,000,000 for each subsequent offense. (Criminal cases only, which this qualifies as.) Sony stated that slightly more than 2,000,000 (2 million) CDs with the offending software are in consumers hands right now. Lets see... some quick math brings the total amount Sony could be penalized for to right around $1,999,999,500,000... Nearly two trillion dollars. Not quite a sensible amount, I'll admit, but it would come down quite a bit on appeal. All of this thanks to a law that Sony helped push through in the late 20th century. Nice going, douche-nozzles.

The only thing that leaves a bitter taste in my mouth is actually using the DMCA. I understand, from a certain aspect, that yes, it's a law, so it should be used. However, I decry the usage of it by them against us, so I become a hypocrite by advocating it's usage against one of the RIAA members. All-in-all, though, the bitter taste of depending on the DMCA is washed clean by the sweet, sweet irony.

Seriously, someone should get on this. Nail those bastards.

Sony: Asshats extraordinaire.

Alright, I would apologize for the sporradic posting schedule, but most of you who read this blog know me very well, and you know what my schedule is like. Anyway, for those of you who aren't hip to the recent shit, here's what Sony has been in the news for of recent:

A technical dissection by the mighty Mark Russinovich of Sony's rootkit-based DRM. Sony uses genuine black-hat techniques to install a rootkit, even choosing a Windows-sounding name for a service just like your favourite backdoor, and about as easy to detect or remove. Basically, Sony puts the sort of malware on its customers' PCs that the rest of the world spends alot of money fighting.
(from BoingBoing.net[Link])

There you have it. I have been asked many times why I prefer the shadier methods of aquiring music when I, as a musician, see the plight of "my people," I often have to respond with a soft sigh, and a concise "...because the musicians aren't making money off their albums. The record companies are." They are (and have been for some time) screwing the artists, and now, thanks to Sony's blatant move, show that they are trying (and have been for some time) to screw you, the consumer.

The EFF has released a list of CDs that contain the machine-crippling rootkit, and it's a damn shame, because there are a few albums that I would have bought. [Link] How long will the members of the RIAA use the wonderfully successful business model of "screw everyone" before they realize that people are starting to open their eyes and close their wallets? This whole mess makes me want to fire up Azureus [Link] and start the downloading... 'Cause fuck 'em, that's why.