Alex Eckelberry of Sunbelt Software has posted on his blog a proposed settlement for a consolidated group of class actions brought against Sony in the U.S. District Court for Southern New York. Reading through it, I could certainly see a number of things about the settlement that I liked, such as the incentive programs to encourage customers to disinfect their machines and a commitment on Sony's part to have its privacy practices monitored. It was particularly amusing to see Sony agree to try to get iTunes as one of the download services customers could use to get bonus music, since Sony all along has been pointing fingers at Apple when customers complained they couldn't move tunes to their iPods.

And at least the settlement doesn't ignore the EULAs that come with the CDs that have either the XCP or MediaMax DRM installed. Sony agrees that in the future it will not install DRM on a customer's computer before they get to see and agree to the disclosures about the DRM in the EULA. And one very good aspect of the settlement is that Sony waives its consequential damage liability limitation clauses for individual legal actions, meaning that those whose computers or networks were actually damaged by the DRM could bring individual actions seeking compensation.

Still, though, it was something about the way the settlement discusses the EULA provisions that was my biggest problem. This paragraph describing what Sony is agreeing to do might illustrate it best:

"Defendants have agreed to waive certain of their rights under the XCP and MediaMax EULAs. These waivers will allow consumers to remove the XCP and/or MediaMax software from their computers, listen to the audio files across all file formats and in all portable music players, and choose not to download future updates of the XCP or MediaMax software. Once these provisions are waived, consumers will not have to be in possession of the Sony BMG CD to hold a license for the audio files, will not be precluded from copying music files and other digital content on the CDs, will be allowed to resell the CDs, and will not lose their licenses for the software if they file for bankruptcy protection or are declared insolvent. Also, Defendants waive their rights to be indemnified by users of the XCP or MediaMax software for harm arising from their use of the software."

So Sony has waived all of the most obnoxious terms we previously saw in its EULA. Isn't that a good thing? Well, in a way, but think about what this is saying. The "rights" that Sony is being such a good sport to say it will not enforce in this instance include its right to take away a paid-for license because a customer is insolvent, the right to say which competitor's devices the audio files can be played on, and the right to have customers indemnify Sony for the harm Sony has caused them.

Call me a dreamer, but I had hoped one result of this litigation would be that no company has those kinds of "rights" just because of a few terms in the sneakwrap fine print. Sure, it's swell that this settlement requires Sony, if its puts DRM on its CDs before 2008, to have a EULA that discloses everything the software does in plain English. But the settlement doesn't preclude Sony from using its EULA to once again claim the same rights as it did this time. In other words, Sony can basically do the same thing again - next time it just has to disclose what it's doing a little more clearly and completely in its EULA. And come 2008, Sony is free to revert to the old EULA or, for that matter, to go find a new rootkit to use on its CDs.

I'd say this settlement is a slap on the wrist for Sony, except that might be exaggerating the severity of the punishment it's receiving. Let's hope that other legal actions not covered by this settlement, such as the Texas Attorney General's investigation, go a little further in curtailing the reckless use of DRM and EULAs. Is it too much to hope that, rather than Sony being begged to waive some of the rights it thinks it can grant itself, there might be an acknowledgement that we customers have a few rights of our own?

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