Texas AG Sues Sony Under State Anti-Spyware Law

By Eric Goldman

Texas v. Sony BMG Music Entertainment (Tx. Dist. Ct. complaint filed Nov. 21, 2005).

From a legal standpoint, today wasn’t a good day for Sony. In addition to being sued by the EFF, Texas decided to join the fray. Texas has brought a lawsuit against Sony based on Texas’ new Consumer Protection Against Computer Spyware Act.

Based on the specific requirements of that statute, the alleged violations involve Sony’s file naming conventions, Sony’s masking of file names and Sony’s implied claims that its software needed to be installed to enjoy the music on the CD. The claims do not involve any of the software’s phone-home capabilities (which is what I thought was Sony’s biggest legal problem), nor do they directly involve the challenges of uninstalling the software or the software’s ability to be used by bad actors for malicious purposes.

I was amused by the extensive self-promotion of Texas AG Greg Abbott in the news release. Abbott’s name is referenced no less than 6 times on the page (among other self-aggrandizement). I don’t think there can be a serious question that Texas’ lawsuit represents the typical exercise of prosecutorial discretion for political benefit. Does Texas need to correct a failure of private enforcement against Sony? No. Is this a strong case to test a newly-enacted statute? No (at least, not in my opinion). So why is Texas rushing to join the party? My instincts tell me that Abbott wants to break Spitzer’s current monopoly as the only state AG who gets press as being tough on spyware.

Even though the prosecutorial motivation is questionable, there’s no question that Sony’s strongest–and perhaps only–move is to settle up with Texas, and quickly. There is no upside to a long-term battle on this topic, so the quicker that Sony makes amends for its choices, the quicker it can refocus on its core business.

UPDATE: Unsurprising announcement–Spitzer wants to grab some of the spotlight for himself.

UPDATE 2: Good grief–now spam-happy Florida AG Charlie Crist wants a piece of the action.

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