Software Liability II

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• Readings:
  • Deirdre K. Mulligan and Aaron K. Perzanowski, The Magnificence of the Disaster: Reconstructing the Sony BMG Rootkit Incident, 22 Berkeley Technology Law Journal 1157 (2007)
• Notes: This is a post-mortem of a famous case of allegedly harmful software. We’ll ask what made it so bad, and what the law can do about it.
• Questions:
  1. What is DRM?
  2. What is a rootkit? Is it appropriate to describe the Sony BMG DRM this way?
  3. Why did Sony BMG put this software on CDs it sold in 2005?
  4. Was Mulligan and Perzanowski’s description of the Sony BMG DRM software accurate in 2007? Is it accurate now in 2023, or is that question now irrelevant?
  5. What kind of process should companies follow when deciding whether or not to add “features” like this to consumer software?
  6. Critique the following argument: “People can install whatever software they want on their computers. They chose to install this software. It is not the government’s place to intervene.”
  7. Critique the following argument: “Sony BMG’s software was badly coded, but there is nothing wrong with the general idea of DRM. But Mulligan and Perzanowski want a world in which DRM is unworkable because computer owners can always use their own software to crack the DRM.”
• Additional Resources:
  • James Grimmelmann, Spyware v. Spyware: Software Conflicts and User Autonomy, 16 Ohio State Technology Law Journal 25 (2020)
  • Jonathan Mayer, Government Hacking, 127 Yale Law Journal 570 (2018)