Re: [dvd-discuss] Dion's new CD crashing party for some users

["Sanford Langa" <langa(at)mauilaw.com>]

I don't think I've ever seen a computer that isn't a "protected computer"
under subsection (B). What computer isn't used in interstate commerce or
communication?

----- Original Message -----
From: "Michael A Rolenz" <Michael.A.Rolenz@aero.org>
To: <dvd-discuss@eon.law.harvard.edu>
Sent: Friday, April 05, 2002 1:42 PM
Subject: Re: [dvd-discuss] Dion's new CD crashing party for some users


The problem with the application of the law in this case is that it
applies ONLY to *protected* computers.

a) Whoever -
>>> ...
>>> (5)(A)knowingly causes ..... to a *protected computer*;
>>>
>>> (B)intentionally accesses a *protected computer* without
authorization,
>>>....
>>>
>>> (C)intentionally accesses a *protected computer* ....


2)the term ''protected computer'' means a computer -
>>>
>>> (A)  exclusively for the use of a financial institution or the United
>>> States Government, or, in the case of a computer not exclusively for
>>> such use, used by or for a financial institution or the United States
>>> Government and the conduct constituting the offense affects that use
>>> by or for the financial institution or the Government; or
>>>
>>> (B) which is used in interstate or foreign commerce or communication;

Congress has made it an offense to interfere with *protected* computers.
Congress has left an out since "Unprotected" computers seemingly are not
covered....although I do NOT see much difference between Sony and the
everyday writer of virii in this matter.




"Arnold G. Reinhold" <reinhold@world.std.com>
Sent by: owner-dvd-discuss@eon.law.harvard.edu
04/05/02 12:30 PM
Please respond to dvd-discuss


        To:     dvd-discuss@eon.law.harvard.edu
        cc:
        Subject:        Re: [dvd-discuss] Dion's new CD crashing party for
some users


The issue is not consumers' inability to play the Dion disk on their
PC's. Sony may well have the right to issue media that doesn't play
in computers as long as its clearly so marked. (Consumers who have
purchased expensive computers on the understanding that they could
use them to play CDs might have a claim against Sony given that Sony
participated in that marketing effort -- especially consumers that
purchased Sony computers! But that's another story.)

I'm saying that, as I read the law, Sony does not have a right to
release media it knows will cause computers to crash. Not only are
crashes inconvenient, they can corrupt file systems causing data
loss.  Congress has made it a criminal offense to intentionally
release a program or information that damages computers.  They have
amended the law several times to extend it's reach. The courts have
apparently said it applies even when the program  is merely being
used to enforce contract rights.

I agree it might be hard for an individual to bring a case. The Judge
could say, you obviously know about these disks so presumably you
won't be using them. But someone responsible for many computers or
who has a health or safety angle would have a good argument, I think.

Arnold Reinhold


At 9:17 AM -0800 4/5/02, Michael A Rolenz wrote:
>I think it may be stretching it a bit. The defense is that they only
>caused a minor problem resolved by merely rebooting the machine to N
>Million "consumers" who should have read the disclaimer <is it on the CD
>or just the jewel case. If the latter then that is fraudulant marking of
a
>product which is the CD>...and having been suitably punished should never
>do that again!
>
>Now if some administrator tries to play it in his master control station
>and it causes the network at a hospital or bank or government facility to
>lock up and freeze, then therre may be something to this but for the
>millions who can't play their CDs in their computer I think the courts
may
>have deaf ears....unless the judge who hears the case has tried  to play
>Celine Dion on HIS computer!
>
>
>
>
>"Arnold G. Reinhold" <reinhold@world.std.com>
>Sent by: owner-dvd-discuss@eon.law.harvard.edu
>04/04/02 09:08 PM
>Please respond to dvd-discuss
>
>
>        To:     dvd-discuss@eon.law.harvard.edu
>        cc:
>        Subject:        Re: [dvd-discuss] Dion's new CD crashing
>party for some users
>
>
>That's why I suggested a large university would be ideal. A users
>group might also be able to show aggregated losses.
>
>But there's that "damage or loss" phrase in (g). I suppose one could
>argue that "damage" includes everything defined in (e) (8), i.e.
>including medical diagnosis affects or threats to public safety,
>while the "or loss" part includes ANY monetary damages.
>
>There may even be a public health and safety argument as well,  since
>hospital people probably play CDs at work.
>
>Arnold Reinhold
>
>At 6:26 PM -0800 4/4/02, microlenz@earthlink.net wrote:
>>IANAL but the problem would be damages. $5000 is a lot to prove on one
>>computer. On 1M computers at minimum wage it's pretty.Maybe this might
be
>a
>>time for small claims court. How about 100,000 suits against them in
>small
>>claims court?
>>
>>Date sent:                      Thu, 4 Apr 2002 19:43:44 -0500
>>To:                             dvd-discuss@eon.law.harvard.edu
>>From:                           "Arnold G. Reinhold"
><reinhold@world.std.com>
>>Subject:                        Re: [dvd-discuss] Dion's new CD crashing
>>party for some users
>>Send reply to:                  dvd-discuss@eon.law.harvard.edu
>>
>>> At 11:03 AM -0500 4/4/02, Dean Sanchez wrote:
>>> >Yahoo! News has an article about how Sony's new Celine Dion's cd can
>>> >crash a user's computer and how Sony admits to this action.  I would
>>> >think that this could be considered a "criminal hacking" action and
>>> >subject them to civil and criminal legation, couldn't it?
>>> >http://story.news.yahoo.com/news?tmpl=story&u=/bpihw/20020403/en_bpih
> >> >w/dion_s_new_cd_crashing_party_for_some_users&printer=1
>>>
>>> I am not a lawyer, but my reading of Federal law (18 USC 1030,
>>> excerpts below) suggests Sony should think twice before selling audio
>>> disks (they certainly ought not be called CDs) with  crash-inducing
>>> copy protection in the United States.
>>>
>>> It's no sure thing that the Government would act, but there is this
>>> interesting provision in subsection (g) that provides for injunctive
>>> relief for any person that suffers damage or "loss."  Might it be
>>> possible to seek a court order baring Sony  from introducing this
>>> technology into the U.S.? There is the problem of showing damages
>>> before the albums are sold here.  Perhaps a perceived need to perform
>>> additional backups would do. So might an incident involving an Dion
>>> album purchased in Europe and brought to the U.S.
>>>
>>> A university would make an ideal plaintiff since they typically own
>>> hundreds of computers that are used by students, who sometimes play
>>> CDs (perfectly legally). Universities can easily document the cost of
>>> crashes in terms of support staff time and the risk of lost data.
>>> They also usually have Government research contracts, whose data
>>> could be affected by by Sony-induced crashes. This brings them under
>>> the protection of both subsections of (e)(2).
>>>
>>> See also http://www.loundy.com/E-LAW/E-Law4-full.html#VII which
>>> points out: "The civil provisions were first used in North Texas
>>> Preventative Imaging v. Eisenberg,  which held that a "time bomb"
>>> inserted into a software update to ensure payment could constitute a
>>> violation of the Computer Fraud and Abuse Act." [i.e. 18USC1030]
>>>
>>> Many states have laws on this as well.
>>>
>>>
>>> Arnold Reinhold
>>>
>>>
>>> =========================================
>>>
>>> 18 USC 1030 Fraud and related activity in connection with computers
>>>
>>> (a) Whoever -
>>> ...
>>> (5)(A)knowingly causes the transmission of a program, information,
>>> code, or command, and as a result of such conduct, intentionally
>>> causes damage without authorization, to a protected computer;
>>>
>>> (B)intentionally accesses a protected computer without authorization,
>>> and as a result of such conduct, recklessly causes damage; or
>>>
>>> (C)intentionally accesses a protected computer without authorization,
>>> and as a result of such conduct, causes damage;
>>> ...
>>> shall be punished as provided in subsection (c) of this section.
>>>
>>> (b)Whoever attempts to commit an offense under subsection (a) of this
>> > section shall be punished as provided in subsection (c) of this
>>> section.
>>>
>>> (c) The punishment for an offense under subsection (a) or (b) of this
>>> section is -
>>> ...
>>>
>>> (3) (A) a fine under this title or imprisonment for not more than
>>> five years, or both, in the case of an offense under subsection
>>> (a)(4), (a)(5)(A), (a)(5)(B), or (a)(7) of this section which does
>>> not occur after a conviction for another offense under this section,
>>> or an attempt to commit an offense punishable under this
>>> subparagraph; and
>>> ...
>>>
>>> (e)  As used in this section -
>>> ...
>>>
>>> (2)the term ''protected computer'' means a computer -
>>>
>>> (A)  exclusively for the use of a financial institution or the United
>>> States Government, or, in the case of a computer not exclusively for
>>> such use, used by or for a financial institution or the United States
>>> Government and the conduct constituting the offense affects that use
>>> by or for the financial institution or the Government; or
>>>
>>> (B) which is used in interstate or foreign commerce or communication;
>>> ...
>>>
>>> (8) the term ''damage'' means any impairment to the integrity or
>>> availability of data, a program, a system, or information, that -
>>>
>>
>> > (A) causes loss aggregating at least $5,000 in value during any
>>> 1-year period to one or more individuals;
>>> (B) modifies or impairs, or potentially modifies or impairs, the
>>> medical examination, diagnosis, treatment, or care of one or more
>>> individuals;
>>> (C) causes physical injury to any person; or
>>> (D) threatens public health or safety;
> >> ...
>>>
>>> (g) Any person who suffers damage or loss by reason of a violation of
>>> this section may maintain a civil action against the violator to
>>> obtain compensatory damages and injunctive relief or other equitable
>>> relief.  ...
>>>
>>> [from http://www4.law.cornell.edu/uscode/ ]