How Sony BMG lost its mind and rootkitted its CDs -- prepublication law paper

Aaron Perzanowski and Deirdre Mulligan have just posted a wonderful pre-publication paper called "The Magnificence of the Disaster: Reconstructing the Sony BMG Rootkit Incident," which will shortly be published in the Berkeley Technology Law Journal. Exhaustively researched and footnoted -- but written in clear, non-lawyerese prose -- The Magnificence of the Disaster comprehensively analyses the madness that led Sony-BMG to install dangerous, illegal rootkit anti-copying software as well as spyware (produced by a company founded to supply Elvis impersonators, no less!) on millions of its CDs, leading the company to enormous financial and legal penalties.
Potential customers who were aware of the existence and dangers posed by Sony BMG’s protection measures steered clear of XCP discs. The sales history of Get Right with the Man, an XCP-infected album by Van Zant that was released some six months prior to the rootkit announcement, is emblematic of the online retail impact of the rootkit incident. On November 2, just two days after the initial public announcement of the rootkit, Get Right with the Man ranked at number 887 on the music charts at Amazon.com.61 The next day, after Amazon user reviews alerted shoppers to the dangers posed by XCP, the album dropped to number 1,392.62 By the Thanksgiving holiday weekend, the XCP recall was underway and the album plummeted to number 25,802.63 In contrast, in retail environments in which customers had less immediate access to information about the dangers of XCP, sales of Get Right with the Man were relatively undisturbed.64 Since brick and mortar retailers like Wal-Mart, the nation’s leading seller of CDs,65 do not facilitate the sort of customer feedback common to online retailers, this outcome is hardly surprising...

SunnComm, the company that delivered MediaMax, offered even more cause for concern. The company began as a provider of Elvis impersonation services.114 After a change in management following a false press release announcing a non-existent $25 million production deal with Warner Brothers,115 the company purchased a 3.5” floppy disk factory in 2001, displaying a disturbing dearth of technological savvy.116 After two em- ployees announced their intention to leave the fledgling company to de- velop copy protection software, SunnComm convinced the pair to lead a new division, leaving both Elvis and floppy discs behind in order to de- velop what would become MediaMax.117

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