Sonys EULA May Be
Asking for Trouble"> What Suvashis Bhattacharya, an IP attorney in the Palo Alto office of Thelen Reid & Priest LLP, found most interesting, however, was the combination of all the other problems with Sonys EULA (End User License Agreement). Bhattacharya suggested that the EULA "found on the CDs that contain the rootkit software has many restrictions and requirements that may be argued to violate the copyright laws as well as the rights that are guaranteed to the end user.""Considering that the user has the right to make a copy of the CD under the Fair Use doctrine, one may argue that this provision violates the copyright laws by requiring the user to erase all copies of the CD if the original CD is lost, destroyed or stolen." Rubbing salt into the wound, the EULA also "requires the purchaser to install all updates for the rootkit software or otherwise lose rights to be able to access the contents on the CD." And if your system is damaged by the rootkit? Too bad. "Further, should the software be defective or expose vulnerabilities to hackers, the License states that the purchaser assumes the costs for fixing the problem. The License does allow the purchaser to collect up to $5.00 from Sony, however, in the case that the software causes a loss in data or equipment," Bhattacharya said.
Sony BMG recalls CDs carrying the XCP DRM software. Read more here.
Sonys EULA also restricts the users access to legal recourse, Bhattacharya said. "One provision in the License states that the user waives any right to seek judicial approval which may be needed to terminate the License. The License also forces the user to waive his or her right to a jury trial for any dispute that arises relating to the software or the License. Of course, it may be argued that this provision violates the U.S. Constitution as well as various state Constitutions."
The restrictions and requirements imposed by the EULA on CDs bearing the rootkit software raise many questions that the legal, software and consumer industries should tackle, lest enforcement of the agreements have "a chilling effect" on business, Bhattacharya said.
Taken all in all, as one legal marketing expert said, "if [Bhattacharyas] eye-opening analysis of Sonys EULA is true, look out!! Attorneys will be salivating."
Indeed, one way or another, thanks to its use and licensing of XCP DRM, Sony may be in for quite a legal shipwreck.
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Among these, Bhattacharya said, are "restrictions in the License [that state] that the user will not be able to access the content on the CD if he or she no longer possesses the original CD.