A man walks past a display of Sony's products near its headquarters in Tokyo May 14, 2009. Sony Corp promised on Thursday to halve this year's losses, but the electronics to entertainment giant's better-than-expected outlook offered little solace to markets vexed by glum U.S. retail sales. REUTERS/Kim Kyung-Hoon (JAPAN BUSINESS) (Reuters)

Sony's latest attack on customer freedom

By taking researchers to court, the company demonstrates contempt for the law and its customers

Dan Gillmor
January 20, 2011 6:20AM (UTC)

I go out of my way not to buy products from Sony. I occasionally regret this because some of Sony's hardware is best-of-breed. But there are alternatives, and I do my best to find them, because Sony is Exhibit A in the abuse of intellectual-property laws by corporations that believe they have all the rights -- including how products may be used after sale -- with users and purchasers having no rights at all.

In the latest case, as the Electronic Frontier Foundation explains, Sony has sued computer security researchers:


for publishing information about security holes in Sony’s PlayStation 3. At first glance, it's hard to see why Sony is bothering — after all, the research was presented three weeks ago at the Chaos Communication Congress and promptly circulated around the world. The security flaws discovered by the researchers allow users to run Linux on their machines again — something Sony used to support but recently started trying to prevent. Paying lawyers to try to put the cat back in the bag is just throwing good money after bad. And even if they won — we'll save the legal analysis for another post — the defendants seem unlikely to be able to pay significant damages. So what's the point?

The real point, it appears, is to send a message to security researchers around the world: publish the details of our security flaws and we'll come after you with both barrels blazing. For example, Sony has asked the court to immediately impound all "circumvention devices" — which it defines to include not only the defendants' computers, but also all "instructions," i.e., their research and findings. Given that the research results Sony presumably cares about are available online, granting the order would mean that everyone except the researchers themselves would have access to their work.

It's not just an abuse of the Digital Millennium Copyright Act, which (to be fair) was designed to be abused. Among other freedom-limiting provisions, the DMCA makes it illegal to circumvent digital restrictions that companies put into their products to prevent you using them the way you see fit. The Library of Congress has granted some exceptions, including permission to jailbreak mobile phones like Apple's iPhone, but the exceptions mean that the vast majority of electronic products really belong to the companies that sell them, not to the people who buy them.

Sony is also attempting to misuse another law in the current matter, the Computer Fraud and Abuse Act, by essentially claiming that the researchers are breaking the law by violating the endlessly worded terms of service that accompany all such products. As legal blogger Orrin Kerr writes, Sony's stance is tantamount to saying, "You’re guilty of felony computer hacking crimes if you access your own computer in a way that violates a contractual restriction found in the fine print of the licensing restriction of the product imposed by the manufacturer."

Of course, Sony is not the only technology company to abuse the legal system. But Sony has shown deeper disrespect for its customers than most others. Recall the scandal a few years ago when the company installed dangerous rootkit software on CDs, in an attempt to prevent copying, and tried to brazen its way out of an absolute scandal with trademark bluster and deceptions.


I hope the EFF and other legal organizations will help the researchers in this case. I especially hope this case will help wake people up to the dangers that corporate abuses of copyright and other laws represent to your rights in the Digital Age.

What I don't expect, unfortunately, is for Sony to ever remotely understand how loathsome its behavior continues to be. So I will do the little I can to fight back -- namely, donating to the EFF and other such organizations, and buying none of Sony's gear, no matter how good it is, until the company stops treating the rest of us like chattel instead of customers.

Dan Gillmor

A longtime participant in the tech and media worlds, Dan Gillmor is director of the Knight Center for Digital Media Entrepreneurship at Arizona State University's Walter Cronkite School of Journalism & Mass Communication. Follow Dan on Twitter: @dangillmor. More about Dan here.

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