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L'exception de copie privée face aux dispositifs techniques de protection des oeuvres

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par Marjorie PONTOISE
Université Lille II - Master 2 pro Droit du cyberespace (NTIC) 2005

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Legal situation

A number of parties have sued Sony BMG for their actions in distributing the infected CDs.

Texas state action

On November 21, 2005, the Texas Attorney General Greg Abbott sued Sony BMG. Texas is the first state in the United States to bring legal action against Sony BMG in this matter. The suit is also the first filed under the state's 2005 spyware law. It alleges the company surreptitiously installed the spyware on millions of compact music discs (CDs) that consumers inserted into their computers when they play the CDs, which can compromise the systems.

On December 21, 2005 Abbott added new allegations to his lawsuit against Sony-BMG, regarding MediaMax. The new allegations claim that MediaMax violates the state's spyware and deceptive trade practices laws, because the MediaMax software is installed even if users decline the license agreement that would authorize its installation. Abbott said "We keep discovering additional methods Sony used to deceive Texas consumers who thought they were simply buying music," and "Thousands of Texans are now potential victims of this deceptive game Sony played with consumers for its own purposes." In addition to violations of the Consumer Protection Against Computer Spyware Act of 2005, which allows for civil penalties of $100,000 for each violation of the law, the alleged violations added in the updated lawsuit, on December 21, 2005, carry maximum penalties of $20,000 per violation.

New York and California class action suits

Class action suits have been filed against Sony BMG in New York and California. [24]

On December 30, 2005, the New York Times reported that Sony BMG has reached a tentative settlement of the lawsuits, proposing two ways of compensating consumers who have purchased the affected recordings. According to the proposed settlement, those who purchased an XCP CD will be paid $7.50 per purchased recording and given the opportunity to download a free album, or be able to download three additional albums from a limited list of recordings if they give up their cash incentive. District Judge Naomi Reice Buchwald entered an order tentatively approving the settlement on January 6, 2006.

The settlement is designed to compensate those whose computers were infected, but not otherwise damaged. Those who have damages that are not addressed in the class action are able to opt out of the settlement and pursue their own litigation.

A fairness hearing will be held May 22, 2006 at 9:15 am at the Daniel Patrick Moynihan United States Courthouse for the Southern District of New York at 500 Pearl Street, Room 2270, New York, NY.

Claims must be submitted by December 31, 2006. Class members who wish to be excluded from the settlement must file before May 1, 2006. Those who remain in the settlement can attend the fairness hearing at their own expense and speak on their own behalf or be represented by an attorney.

Other actions

It was reported on December 24, 2005 that Florida Attorney General Charlie Crist is investigating Sony BMG spyware.

Threats of legal action in Italy have also been reported. On November 21, EFF announced that they were also pursuing a lawsuit over both XCP and the SunnComm MediaMax DRM technology.. On December 6, 2005 Sony-BMG said that 5.7 million of its CDs were shipped with SunnComm MediaMax that requires a new software patch to prevent a potential security breach in consumers' computers. The security vulnerability was discovered by EFF and brought to the attention of Sony BMG. The MediaMax Version 5 software was loaded on 27 Sony BMG titles. All these suits are regarding security threats and other damage to customer computers, not copyright issues in the code. The EFF lawsuit also involves issues concerning the Sony BMG end user license agreement.

Despite the numerous civil lawsuits that were spawned or threatened, the US Department of Justice (DOJ) refused to make any comment on whether it would take any criminal action against Sony. This despite the fact that the company seems to have violated several sections of Federal cybersecurity law. Instead, the DOJ initiated a new bill to Congress called The Intellectual Property Protection Act of 2005 that would formally criminalize the act of file sharing, thus showing support for Sony's efforts to protect its copyrights.

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