[IP] The Lasting Impact of Sony's Rootkit
-------- Original Message --------
Subject: The Lasting Impact of Sony's Rootkit
Date: Mon, 21 Nov 2005 07:37:14 -0500
From: Michael Geist <mgeist@xxxxxxxxx>
To: dave@xxxxxxxxxx
References: <437E264B.5000705@xxxxxxxxxx>
Dave,
You've features a lot of commentary on the Sony rootkit story. If
you're interested in a bit more, my column today recaps developments
from the past three weeks and focuses on the lasting impact of the
case.
I note that the incident has alerted millions of consumers to the
potential misuse of TPMs as well as to the need for consumer
protections from such systems. While policy makers have raced to
provide legal protections for TPMs, the real need is to protect
against the misuse of this technology.
The Sony case provides a vivid illustration of how TPMs can create
real security and privacy risks. The U.S. Computer Emergency
Response Team advised users that they should not "install software
from sources that you do not expect to contain software, such as an
audio CD." Moreover, Stewart Baker, the U.S. Department of Homeland
Security' s assistant secretary of policy, admonished the music
industry, reminding them that "it's very important to remember that
it's your intellectual property - it's not your computer. And in the
pursuit of protection of intellectual property, it's important not to
defeat or undermine the security measures that people need to adopt
in these days."
Baker's comments point, as well, to another issue that has been
percolating for some time, namely that TPMs not only put users'
property at risk, but they also limit use of lawfully-acquired
personal property.
Justice Ian Binnie of the Supreme Court of Canada raised this concern
in the Theberge copyright case several years ago when he noted that
"once an authorized copy of a work is sold to a member of the public,
it is generally for the purchaser, not the author, to determine what
happens to it."
The Australian High Court expressed similar sentiments in the Sony v.
Stevens decision issued last month. It rejected Sony's attempt to
block the use of "mod chips", utilized by video game players to
unlock games with TPMs purchased outside the country, emphasizing
that "the right of the individual to enjoy lawfully acquired private
property (a CD ROM game or a PlayStation console purchased in another
region of the world or possibly to make a backup copy of the CD ROM)
would ordinarily be a right inherent in Australian law upon the
acquisition of such a chattel."
The incident should also galvanize Canadian regulators and political
leaders. The Privacy Commissioner of Canada should use her audit
powers to investigate other potentially invasive uses of TPMs, while
the Competition Bureau should consider whether Sony violated
deceptive practice legislation. Moreover, Industry Minister David
Emerson and Canadian Heritage Liza Frulla should reconsider their
proposal to protect TPMs, which has the effect of protecting spyware,
undermining consumer confidence, and ultimately reducing the sales of
Canadian musical artists.
I conclude by arguing that with consumer backlash against deceptive
music CDs and licensing agreements, policy maker worries about the
privacy and security implications of TPMs, and the courts' concern
for personal property rights, the Sony rootkit case is destined to
resonate long after the dangerous CDs disappear from store shelves.
Toronto Star version at
<http://geistsonyrootkit.notlong.com>
Freely available version at
<http://www.michaelgeist.ca/index.php?option=com_content&task=view&id=1015>
Best,
MG
--
**********************************************************************
Professor Michael A. Geist
Canada Research Chair in Internet and E-commerce Law
University of Ottawa, Faculty of Law
57 Louis Pasteur St., Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319 Fax: 613-562-5124
mgeist@xxxxxxxxx http://www.michaelgeist.ca
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