Sony BMG infringement

I recently discussed Sony BMG’s infringement of my copyright with a lawyer. I have not taken any action against Sony BMG so far for the following reasons:

  • Statutory damages are only available if the work was registered with the U.S. Copyright Office before the infringement occurred.
  • Proving actual damages of any substantial amount will be very difficult due to the fact that the work was licensed under the GPL.

I will be registering my future works with the Copyright Office and releasing my works under a different license (possibly GPL + a liquidated damages clause).

63 thoughts on “Sony BMG infringement”

  2. Did you also consult with the FSF? It seems to me that this case might also have repercussions on the legal interpretation of the GPL.

  3. Im not a lawyer but I would think since they have admitted fault through their settlement with everyone who bought their CDs and the CDs were sold for a profit it would be an open/shut case.

    My 2 cents…

  4. Go after their asses!~ And while you are at it, break their MiniDisc Copy protection too…

  5. Damn… that sucks.

    I know the comment’s not very… deep… but damn.

  6. Since when does something have to be “registered with the Copyright Office” to be copyrighted? It’s copyrighted because YOU published it and YOU say it is.

  7. That sounds wrong. Almost all developed countries, and I’m 90% sure this includes the USA, regard copyright as implicit – you get copyright just by creating the work. No registration is involved. However, the second point is most likely valid.

    Find a new lawyer.

  8. Registration is not required for a work to be copyrighted. It is, however, required for statutory damages to be available.

  9. Statutory damages are somewhat like punitive damages in this case. Registration is fairly easy, just pay the fee and provide a copy of the work. Could still pursue an injuction against Sony or register your copyright now. From what I understand, some of these CD’s are still out there and might be able to get statutory damages for those copies.

  10. 1. Copyright does exist from the moment of creation, but it MUST be registered before action can be taken.

    2. Once registered, you notify them of the infringement and demand that they cease and desist distributing infringing material. ANY distribution that occurs after that IS actionable.

    3. Because it is GPL, it is likely that they would have to include source code and include copyright attributions. That’s about it. However, the fact that they denied you the “right to be considered the author” of the code in question does mean that you could petition for civil relief before the courts.

    4. For all the effort it would involve, it’s probably not worth it. What exactly did you want to get out of it?

    5. If Sony/BMG benefited in any way from their distribution of stolen code, then it is criminal copyright infringement. You could file a complaint with the US Attorney.

  11. @Red: If you’re referring to SCMS, it’s been broken a long time ago. Just look around at all the gray market SCMS bit stripper hardware floating around. Its “protection” is quite laughable.

  12. Hope this doesn’t mean that GPL is useless. Where is the EFF now ??? They HAVE to help you.

    Don’t give up, please, I know you probably don’t need more publicity, but this is an important case. I recently had one of my domains suspended by WIPO because someone demanded me, after 8 years using it and more than 1300 pages of content (http://wolfb.com) . We can not let this things happen !!! I am preparing a wiki for responding to the wiki. Please let me know if I can help you in anything (not that you need help with a computer in front of you ….. 🙂

    And Sony has to pay, the same I have to pay for everything Sony has copyrighted !!!

  13. GPL + liquidated damages clause will not be the GPL and will probably not be GPL compatible.

    Why not offer a dual license with reasonable per-copy terms for non-GPL use. That way you have a baseline to argue damages from.

    Also Sony distributed this globally, right? Why not sue in a country that does not have a copyright registration system?

  14. Just a thought here…

    Since the media that they distributed the work on is not editable, it would make sense to a) register your copyright, b) demand removal of your work, c) pursue damages for existing distributed copies – unless and until such point as sony offers free replacement discs minus your software.

    As far as proving actual damages –
    1) you will always be associated with Sony and copyrighted CD’s. (easy to understand from a jurors point of view)
    2) people don’t like sony and their copyrighted CD’s. (again, easy to understand, especially if you just do some googling for examples)
    3) You now will find it difficult to sell other software as a result (your market associates you with Sony and copyright, and therefore the RIAA and simply won’t support you)
    4) You now will find it difficult to get a job as a developer (many desirable positions are closed off to Mr. Copyright Sony RIAA guy because end customers would be against the hiring)
    5) Future development and planning for this project is harmed – other developers don’t want to be associated with it, they don’t want to get involved in legal problems by contributing – and now you cannot sell your product to another company.

    The damages are there. You just have to think about how you have been harmed, list out the reasons, list out ways to prove it, sue, write a few press releases, and turn down the first two settlement offers. Before you know it, you’ll get paid. I’d be surprised if a local attorney would not take this case on for a percentage of the settlement.

  15. Hello.

    Please read

    A couple of excerpts:

    Statutory damages are available in all copyright cases should the plaintiff so desire. They may be awarded to the plaintiff even though the actual market harm may be quite small, or difficult to calculate with certainty.

    and

    One of the major misconceptions of parties who use copyrighted material without authorization is that they are only liable for the actual profits that they make, or for the plaintiff’s actual loses, if they are found responsible for copyright infringement. That is indeed the traditional measure of damages, and it is set forth in section 504(a)(1) of the Copyright Act of 1976, which says that a copyright infringer is liable for “the copyright owner’s actual damages and any additional profits of the infringer…”

    Section 504(c), however, gives the plaintiff another option, namely statutory damages: “[T]he copyright owner may elect, at any time before final judgment is rendered, to recover instead of actual damages and profits, an award of statutory damages for all infringements involved in the action.” The plaintiff, therefore, has a choice of whether to get into a serious battle of the accountants and economists or to ask the court to determine a damage amount that it “considers just,” as stated in section 504(c).

  16. Well.. I’m prone to think that your lawyer’s advice is definitely true if you plan to sue Sony BMG Inc. in a U.S. Court, but things may be really different if you choose a different jurisdiction. As you surely know a German Court has issued damages in a similar case involving a GPL violation.
    And the fact that you released your work under GNU-GPL, doesn’t mean that you waived any royalty rights involving commercial exploitation of your work.

    Just my 2 eurocents..

  17. There was a digg about copyright awhile back and it said that

    “Berne copyright convention. For example, after April 1, 1989, almost everything created privately in the USA is copyrighted and protected whether it has a notice or not. The default you must assume for other people’s works is that they are copyrighted and may not be copied unless you *know* otherwise. There are some old works that lost protection without notice, but frankly you should not risk it unless you know for sure.”

    (I am quoting from the website and linking directly to it.)
    (I hope that me quoting it does not mean that I am in violation of a copyright)

    http://www.totse.com/en/law/justice_for_all/10cpmyth.html

    In my opnion I would ask another lawyer.

  20. I think you need to find a new lawyer, because the whole damn point of the GPL is to keep free software free, so why wouldn’t you be able to sue for damages even though the code is under the GPL? Sony blatantly violated the GPL, by a) not publishing source code and b) not giving you proper credit

  21. Now, I could be wrong here, but I was under the impression that copyright was enforced as long as your country was signed up to the Berne Convention, and was also a member of the WTO. Registering with the USPTO is nice, but not mandatory.

    As for the GPL, well, I was also under the impression that the GPL did not mean people could do a five-fingered-discount on your work. What a crock! Does he need a new lawyer or am I barking up the wrong tree?

    The quote above is from VitalSecurity.org and to me it makes sense mate.

    What they are saying is wrong, you dont have to register with the US CO at all.

  22. You need to find an attorney with enough balls to take on Sony. Not an easy task. If persued agressively, their just might be a light at the end of the tunnel.

  23. The copyright is implicit so whoever says otherwise is full of shit. Now since you released that as GPL what is the problem with Sony using it if they respect the license? I think you have no case and no point here. You can’t say sony infringe your copyright because you dislike them. I am sure they hate you too for DeCSS… But if they abide the terms in the license, you are SOL.

  24. “Registration is not required for a work to be copyrighted. It is, however, required for statutory damages to be available.”

    100% True. Technically, you are supposed to register your work within a certain amount of time after creation. Good luck though Jon.

  27. This just goes to show that Sony, indeed, actually SUCKS and that we should stop consuming their products. How long will it be before we learn not to screw ourselves with products from companies that rely on under-handed, closed-door marketing practices?

  28. Have you considered suing for a non-monetary result?
    If First4Internet and Sony are including GPL code in their DRM products, would that not trigger the GPL’s requirement for full release of the entire program’s source code? I’m sure there would be some interest in seeing that.

    If nothing else, an injunction to stop the infringement would put both Sony and First4Internet out of the DRM business at least until the code is rewritten.

  29. Hire another lawyer. A work does NOT have to be registered with the copyright office before it can be considered protected, although it helps a lot. For example, ever see the “Copyright 2006” at the bottom of websites? That blurb is enough protection under the law even those websites are not registered under the copyright office.

    The GPL license is another issue. However, I believe that Sony is not allowed to sell a product registered as GPL…that was the whole point of the GPL. So you might be able to go at that angle too.

    You can still win this with a good lawyer. Sony is counting on the little guy giving up because copyright lawsuits require some effort (and enough cash to feed your lawyer until you win the lawsuit).

  30. “Proving actual damages of any substantial amount will be very difficult due to the fact that the work was licensed under the GPL”

    Since it’s common practise to offer non-GPL licenses of GPL’ed software for a fee, couldn’t you use that to argue you did have actual damages?

  31. Better protect your “valuables” now Jon. You shouldn’t let Sony benefit from your work with no compensation.

  32. Hi,

    Just a thought but I think you should solicit for a lawyer through the web somehow e.g. ebay or other because what you are proposing is a costly battle. You need someone who will not only win, but have deep pockets and a desire to make some big enemies. Thats not for any lawyer and some of them may think they are doing you and them a favor but ‘bullshi*ing’ you into not picking up the case.

    When in doubt always look at self-interest as the culprit.

    Cheers,
    Rog

  33. I was Pretty sure that the GPL license specified that it could only be used for Non-Commercial uses.

  35. I’d still talk to the FSF. While statutory damages would be delightful, the assertion that no monetary damages were done because the software is GPLed is likely to be *very* troubling to the FSF, and not the sort of precedent they’re going to want to let stand.

  37. dude I would say contact the FSF and/or EFF because I think you can register the copyright before the case and still get statutory damages awarded to you. Also with copyright tort the plantiff doesnt have to suffer monetary damages, you can claim other damages such as reputation, etc.

  38. Any interest in investing a few grands in a court process to have them declare Sony guilty and give you a symbolic $1?
    This may be more valuable than hurting Sony’s bottom line by taking 0.00001% of their quarterly revenues.

    A lot of this stuff is first and foremost a matter of principle.

  39. Why you don’t ask them to make their code available as GPL… if they don’t want to, you can sell them an special license for them ($1.00 for each CD…).

  41. Talk to a lawyer. You should still be able to register, though my understanding is that registering after the fact is less effective than registering before.

    Cheers!
    –zak

  42. Is the Ironny of this post escaping anyone. So you disable DVD protection which allows millions of people to rip DVDs and thus intellectual property rights from their owners, however evil they are. And now seek protection under the law regime you thumbed your nose at?

    Hence the difference in attitude when it is your intellectual property being ripped off.

    Sucks I know

  43. Did you place a GPL license on your code? If so, Sony might be obligated to release the full source of their protection software to the community due to the GPL license. Once the software is published, it has to be released, even if after the fact they want to pull the product, the source is in my understanding in the public domain.

    If you had just a copyright, then at the very most, you can legally require them to prove that no CDs still on market contain your software, even in other forms or different versions of the protection software. Make them jump through some hoops.

  44. Whoa…did you tell the lawyer that the code was not written in the United States? US Copyright law divides works into two categories: basically works authored here, and foreign works, and the requirements for damages are different between the two. If your work counts as a foreign work, then the requirements are considerably more lax, in order to comply with the Berne Convention.

    Basically, when a country joins the Berne Convention, they have to make their copyright laws comply, but they aren’t required to make those changes apply to their own citizens. The United States took that approach, and kept the more strict requirements for US authors.

  45. This can’t be right… “Proving actual damages of any substantial amount will be very difficult due to the fact that the work was licensed under the GPL.” That would mean anthing under a GPL is available for anyone to steal. Sony made a profit, that’s your monetary watermark right there.

  46. I will be registering my future works with the Copyright Office and releasing my works under a different license (possibly GPL + a liquidated damages clause).

    I thought the GPL was incompatible with adding further restrictions than its own. I don’t think such a license would be, say, DFSG-free.

    – C.

  47. Kelly’s right – sue them for not releasing the source, and not including the GPL with the CD, get an immediate injunction to stop distribution, make them remove every CD from every store (including 2nd hand ones) – (I’m not just talking about Sony – F4I needs to be hit up, they also distributed your software and they have other customers – make THEM remove all their CDs too)

  51. You should change the name of the blog to “So sue you” ……

    Nobody from Sony appologized to you ? Maybe that is what we should try then…..

  52. The artist should be supported, but music needs to be flexible. When will companies realize this?

  53. Hi Jon,

    We’re a long way from the IDA board but what the heck. 😉

    I believe your interpretation and/or the advice you have been given is incorrect.

    Please seek *talented* legal council, a few of them, before making any sort of decision.
    There is at least one lawyer willing to take your case:
    http://www.techdirt.com/articles/20060201/0313222_F.shtml

    Personally, I would contact Lary Rosen (www.rosenlaw.com) and others who actually know what the heck they are talking about before giving up.

    Do on to Sony as Sony has done onto you. 😉

    Kind Regards,
    JCR

  54. I would save all the time and energy it would take to sue Sony and use it to modify FairKeys so that it works with iTunes 6. This way, iPod carrying San Diego cuties with big boobies will have a reason to thank you.

    Just a thought.

  55. Actually, it shouldn’t be that hard to prove damages because your work was distributed in a proprietary manner. It would’ve cost money for them to dual-license it to a proprietary license, thus your damages. The registration part sucks, though. I don’t suppose you could get affidavits from the CVS maintainer stating that your code was created and owned by you well before the infringement?

  56. Even if you can’t get damages I think it would be worthwhile to try to get them to release the applicable source code as it may help those looking into the security issues and other various cases relating to that.

  57. Are we all forgetting something? I believe that Jon wouldn’t be able to sue Sony directly, since they only used the software. The software was made by First4Internet. He might be able to get at them for secondary liability, though.

    Also, while IANAL, I don’t you don’t need to have registered the work with the U.S. Copyright office before infringement. You just need to register with them prior to suing the company responsible.

    That having been said, since First4Internet is based in the UK, the laws there are far different.

    I echo the statements here: get another lawyer.

  58. Oh, how annoying. It’d be so much easier if it were clear you could sue them and win. Sure you – and us – want to floor them in court if you can, but you also want to get on with your life.

    It does sound worth speaking to another lawyer (although I and just about everyone here isn’t one) if only to hear the same thing twice so you can let it rest easier.

  60. As First4Internet are located in the UK, has anyone explored whether they committed a criminal offence under UK copyright law. It would be the responsibility of Oxfordshire County Council trading standards to investigate complaints about matters like that, as they cover Banbury, where F4I’s registered offices are located.

  61. Dear John,

    UK Companies House http://www.companieshouse.gov.uk and First4internet.co.uk both show First 4 Internet Ltd registered office being in Glamorgan, South Wales rather than Banbury.

    There are several other ‘First 4’ companies registered.

  62. Disclaimer: I am a lawyer in Canada, but I am not qualified to give advice about the laws of other countries, so it is very important that you consult a lawyer with expertise in the relevant jurisdiction before taking any action based on the following:

    Back in law school I wrote a paper comparing the intellectual property regimes of various countries. Although I may be wrong, I seem to remember that the U.K. has a provision in their copyright act that allows the copyright owner of a work to walk into a retail store and seize all copies of an infringing work. There are some legal hoops you have to jump through first, of course, but if I remember correctly, they are reasonably minor (for example, you must first give notice at the local police station). I remember thinking at the time that the procedure in the U.K. was far FAR easier, and also more emotionally satisfying, than the procedure in either Canada or the United States.

    You might also want to look into variations in the way “moral rights” are defined and interpreted in various countries. In particular, the French concept of “droit moral” is significantly broader than its anemic analog on this side of the Atlantic. You almost certainly have rights in France that you did not (and cannot) sign away under the GPL, which is based on a U.S. interpretation of the common law of contract.

    I would be surprised if you were not able to find a few lawyers in France and the U.K. willing to help you out. Many people around the world feel a debt of gratitude to you.

  63. You may not be able to get damages, but you can get a permanent injunction stopping them from using your software again.

    Of course, because they have already stopped using it, this is probably not necessary. But if they ever started again….

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