Last month, Sony BMG settled with the Canadian people over its use of “rootkits” that it deliberately infected Canadians PCs with — software hidden on music CDs that installed itself and hid itself away, all in the name of stopping copying.
The settlement falls far short of the mark that was hit by the US settlement in the suit, and what’s more, a critical piece of the settlement, a mysterious document called “Exhibit C,” was never published.
Now Michael Geist has obtained and published a copy of Exhibit C, in which a Sony BMG VP named Christine J. Prudham spun a bunch of excuses to explain why Canadians weren’t entitled to the same relief that our American cousins received.
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.
Update: Thanks to Amos for the great Sony/Nosy logo remix!
Update 2: EFF also has a critique of the Canadian settlement — thanks, Derek!