You know, I guess we actually have to be grateful to Sony. Without them, who knows how long it would have taken the world to realize what a lethal combination DRM and EULAs can be for even our most basic rights? In fact, with Sony's help, the old threat of electronic self help is now being made palpable for all to see.
As the storm over Sony's rootkit-installing DRM continues to rage, Fred von Lohmann of the Electronic Frontier Foundation yesterday posted a blog item about the EULA that now comes with those Sony CDs. It's important to keep in mind, he points out, that the music is sold, not licensed. "You own it outright," von Lohmann writes. "You're allowed to do anything with it you like, so long as you don't violate one of the exclusive rights reserved to the copyright owner. So you can play the CD at your next dinner party (copyright owners get no rights over private performances), you can loan it to a friend (thanks to the 'first sale' doctrine), or make a copy for use on your iPod (thanks to 'fair use'). Every use that falls outside the limited exclusive rights of the copyright owner belongs to you, the owner of the CD."
But if you want to play the CD on your computer, under the Sony EULA all those rights are "licensed" away. As von Lohmann notes, if your CD is stolen, Sony's licensing rules would require you to erase any of the music you still have on your computer. Playing the music on your computer at work is prohibited, as is taking it with you out of the country (unless it's to the European Economic Area). And of the course the EULA does not allow any altering, changing, or making derivatives works from the music, even those that clearly fall under fair use.
Most astoundingly, Sony actually has the sheer gall to say you lose your rights to play the music on your computer if you file for bankruptcy. All your rights under the EULA are automatically terminated if you "file a voluntary petition or are subject to an involuntary petition under applicable bankruptcy laws, are declared insolvent, make an assignment for the benefit of creditors, or are served with a writ of attachment, writ of execution, garnishment or other legal process pertaining to any of your assets or property." File for Chapter 11, lose your right to use the things you've already paid for - sounds like a plan corporate America could get behind.
Of course, we've seen all sorts of nasty EULA terms (including a similar bankruptcy provision in the AutoCad EULA) before. So the various outrages in Sony's EULA might be mostly of academic interest if it weren't for the fact they are coupled with intrusive DRM intended to enforce some or all of them. "Sony-BMG can install and use backdoors in the copy protection software or media player to 'enforce their rights' against you, at any time, without notice," writes EFF's von Lohmann. "And Sony-BMG disclaims any liability if this 'self help' crashes your computer, exposes you to security risks, or any other harm."
With the at least formal demise of UCITA, it's been a while since I wrote about the electronic self help issue. To refresh your memory, electronic self help is the idea that software vendors would have the EULA-sanctioned right to electronically repossess your software whenever they deem it appropriate. The biggest concern with it was not just that you could arbitrarily be deprived of the use of a product you had paid for, but the security risks posed to your systems and networks by the very existence of the backdoor mechanisms self-help requires. In addition, since all liability for any resulting damage can also be disclaimed in the EULA, there is no risk to the vendor in recklessly, surreptitiously, or maliciously employing self-help mechanisms. Hey, they could even sic some rootkit-type spyware on you.
In other words, the fear about electronic self help being codified in law was always that it would mean companies could cavalierly do what Sony has cavalierly done. So what happens to Sony now will tell us a lot about whether or not we all now actually live under a UCITA-like legal system. I must admit that I'm a bit surprised that the first software company to push it this far would be a music publisher rather than a Microsoft or a Computer Associates. Unfortunately, that just goes to show how much broader and deeper the threat to us all really goes. When EULAs and DRM play in concert, it isn't going to be music to any customer's ears.
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