Does Sony¹s Copy Protection Infringe Copyrights?

The Sony copy protection debacle has so many angles that the mainstream
press is having trouble keeping track of them all. The rootkit. The spyware.
The other spyware. The big security hole. The other big security hole. It¹s
not surprising, then, that at least one important angle has gone nearly
undiscussed in the mainstream press: the likelihood that the
Sony/First4Internet XCP copy protection software itself infringes several
copyrights. (Note to geeks: Slashdot doesn¹t qualify as the mainstream

Matti Nikki (a.k.a. Muzzy) and Sebastian Porst have done great work
unearthing evidence pointing to infringement. They claim that the code file
ECDPlayerControl.ocx, which ships as part of XCP, contains code from several
copyrighted programs, including LAME, id3lib, mpglib, mpg123, FAAC, and most
amusingly, DVD-Jon¹s DRMS.

These are all open source programs. And of course open source is not the
same as public domain. Open source programs are distributed with license
agreements. If you copy and redistribute such a program, you¹re a copyright
infringer, unless you¹re complying with the terms of the program¹s license.
The licenses in question are the Free Software Foundation¹s GPL for mpg123
and DRMS, and the LGPL for the other programs. The terms of the GPL would
require the companies to distribute the source code of XCP, which they¹re
certainly not doing. The LGPL requires less, but it still requires the
companies to distribute things such as the object code of the relevant
module without the LGPL-protected code, which the companies are not doing.
So if they¹re shipping code from these libraries, they¹re infringing

How strong is the evidence of infringement? For some of the allegedly copied
programs, the evidence is very strong indeed. Consider this string of
characters that appears in the XCP code:

FAAC - Freeware Advanced Audio Coder (
Copyright (C) 1999,2000,2001 Menno Bakker.

Porst also reports finding many blocks of code that appear to have come from
FAAC. Porst claims equally strong evidence of copying from mpglib, LAME, and
id3lib. This evidence looks very convincing.

He also points to evidence of copying from DRMS, which doesn¹t look quite as
strong, though it is very suggestive. (There are extensive similarities
between DRMS and the XCP code, but because DRMS implements a decryption
algorithm that offers fewer implementation choices than ordinary code does,
it¹s easier to imagine that similarities might have arisen by chance. I
would have to study the two programs in more detail to say more. But let me
reiterate that the DRMS evidence is at least very suggestive.)

The upshot of all this is that it appears the authors of at least some of
these programs can sue First4Internet and Sony for copyright infringement.
First4Internet wrote the allegedly infringing software and gave it to Sony,
and Sony distributed the software to the public. Sony might not have known
that the code they were shipping infringed, but according to copyright
lawyers, there is strict liability for copyright infringement, meaning that
lack of knowledge is not a defense against liability. (Lack of knowledge
might reduce the damages.) So both companies could face suits.

The big question now, I suppose, is whether any of the copyright holders
will sue. The developers of LAME wrote an open letter to Sony, saying that
they¹re not the suing type but they expect Sony to resolve the situation
responsibly. They don¹t say exactly what this means, but I expect they would
be happy if Sony recalls the affected CDs (which it is already doing) and
doesn¹t ship XCP anymore. To my knowledge, we haven¹t heard from the other
copyright owners.

Being accused of infringement must be horribly embarrassing for Sony, given
the number of ordinary people it has sued for infringing on a much smaller
scale that Sony is accused of doing, and given that the whole purpose of
this software was supposedly to reduce infringement. This is just another
part of the lesson that Sony must have learned by now ‹ and that other
entertainment companies would be wise to learn ‹ that it¹s a bad idea to
ship software if you haven¹t thought very, very carefully about how it was
designed and what your customers will think of it.

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