The reason that this story is significant is not because it is unique. In fact, I suspect Sony BMG’s tactics are indicative of practices throughout the entertainment industries. This story is important because it has made the average consumer at least somewhat more aware of the technological and contractual restrictions placed upon products they thought they owned. Most consumers are flabbergasted when they learn about the conditions they are clicking to agree with: that they may only make 3 copies of the music and only for limited purposes; that they can’t put the music on their iPods; that they can’t use the music if their CD is stolen or if they declare bankruptcy; that Sony BMG purports to limit liability for harm caused to 5 bucks and you have to sue in New York to get it; and so on and so on. Now, I’m not sure whether these terms would be as outrageous if meaningful consent were given. But it clearly was not.
It is what the contract didn’t say that is most objectionable. The contract did not tell you that the “small proprietary software program” would be installed at the core of the computer’s operating system, keeping it hidden from you and from anti-virus software, increasing your computer’s vulnerability to hackers and viruses, making it practically impossible to uninstall and facilitating surreptitious surveillance of your music listening habits. I suppose that, legally, these problems could also be remedied by informed consent, although maybe that shouldn’t the case.
More fundamentally, however, Sony BMG’s false, misleading and deceptive representations and its outrageous terms and conditions demonstrate a lack of respect for its customers. That is why people are upset. Disrespect and mistrust is the root (no pun intended) of this problem.
The consequence is that it is becoming increasingly likely that provincial governments will step in and exercise their jurisdiction to legislate on this matter. Scholars such as
Ian Kerr have established the basic principle that
consumers need protection from technological measures. In a recent book chapter, I have built upon this foundation by addressing the “who” question:
which level of government is competent to enact such legislation (see also
this piece on the privacy-related jurisdictional questions). I think the time has come to take the next step by looking at “what”, specifically, needs to be done.
I have done a fair bit of research, along with staff at
CIPPIC, exploring the viability of existing causes of action against Sony BMG in these circumstances, and have been consulting with one of the leading class action law firms in Canada on the issue. My colleague
Michael Geist has suggested that the Sony BMG settlement in the United States is a
good starting point for a model law regulating the use of technological measures in Canada.
That notion is what I want to explore further. A preliminary analysis shows that there are already a number of laws that apply here, including competition and consumer protection statutes as well as common law tort and contract doctrines. Protection is admittedly piecemeal, but I’m not yet sure whether there are substantial gaps. This may simply be a matter of applying existing laws and principles to slightly novel facts. I think, as a general rule, it is usually better rely on the principle of technological neutrality than to enact issue-specific legislation to address timely problems. On the other hand, perhaps there is something about the nature of technological and contractual measures in this context that warrants special treatment.
Stay tuned for further thoughts …
