The Canadian Sony rootkit class action settlement heads to court next week amid mounting questions about the deal. The EFF calls attention to a number of missing provisions, including no security reviews and no ongoing obligations to provide uninstallers for the rootkit. There is also a financial hit in Canada, with Canadian consumers receiving roughly ten percent less than U.S. consumers due to currency differences.
By far the biggest difference, however, is that the U.S. agreement is subject to injunctive relief linked to actions brought by several U.S. agencies and attorneys general. The Canadian agreement, by contrast does not include such relief. The justification for this difference is contained in Exhibit C, the only key settlement document that Sony has not provided to the public.
I have now obtained a copy of Exhibit C, which is an affidavit from Christine J. Prudham, Vice President, Legal and Business Affairs of Sony BMG Canada (Prudham is the same person who appeared today at the Copyright Board discussing how Sony BMG Canada released just 16 new Canadian records last year). The affidavit seeks to explain why Sony BMG Canada believes it is appropriate to grant Canadian consumers fewer rights than their U.S. counterparts. While there is the suggestion that Canadians would benefit indirectly from a U.S. injunction, the heart of the argument revolves around a series of copyright-related arguments that are utterly without merit. First, Prudham expresses concern that copyright is a federal matter and that the class action is being heard by a provincial court. This makes no sense – there is concurrent jurisdiction over copyrights (the Robertson v. Thompson copyright case currently before the Supreme Court originated in provincial court) but, more importantly, the case isn't about copyright but rather consumer protection, contractual issues, and privacy.
Second, Prudham argues that there is currently a "legal vacuum around TPMs in Canada", concluding that "Sony BMG Canada is not willing to potentially prejudice itself by agreeing to the Injunctive Provisions in the Canadian Agreement." This argument is simply embarrassing – there is no legal vacuum around TPMs in Canada. While Canada does not have anti-circumvention legislation, this is not a legal vacuum and is in no way relevant to this consumer class action lawsuit. The prejudice that Prudham refers to is not legal prejudice, but rather the "political prejudice" that will arise when Sony appears before a parliamentary committee discussing anti-circumvention legislation and is asked about the $25 million settlement arising from the rootkit fiasco and the fact that the company is subject to a potential injunction over the use of the technologies that it is seeking to protect.
Third, Prudham swears in this affidavit that "to impose in Canada the Injunctive Provisions provided for in the U.S. Settlement because of the U.S. Government Inquiries, based on U.S. legislation, would amount to adopting in Canada the U.S. approach to the 1996 WIPO Treaties without giving the Canadian Government the opportunity [to] decide what its policies will be on TPMs in light of the 1996 WIPO Treaties." This statement is complete rubbish. The U.S. actions have nothing to do with the DMCA and, moreover, the Canadian government is quite capable of doing whatever it wants on TPMs regardless of the terms of this class action settlement.
The Sony rootkit fiasco has been a series of missteps that have demonstrated the dangers of TPMs. This latest twist – shrouded for weeks in secrecy – only serves to place Sony in a further bad light and to cast doubt about its sincerity in addressing a major mistake that has harmed its reputation with consumers, musicians, policy makers, and the politicians.