COPYCENSE

Editor’s Note: Because of the seeming incongruence in the Ars Technica lead story and the accompanying referral information posted by the Electronic Frontier Foundation (EFF), we are posting a brief explanation about what we think has happened here.

In summary, EFF is seeking to recover legal fees worth nearly $2 million for its work in helping settle a class action lawsuit against Sony BMG for its use of defective and harmful digital rights management software on several music compact discs. CopyCense has covered this issue exhaustively, and has compiled a Sony BMG rootkit Webliography.

The Ars story, which was posted Monday morning shortly after 11:00 AM, discusses the fee objection filed by Debevoise & Plimpton attorneys Bruce P. Keller and Jeffrey S. Jacobson. In its story, Ars notes that the issue “will be argued [Monday] before a judge in New York,” and added that the parties had not reached a final settlement.

The Ars story is unclear whether the fee challenge and the settlement were to be addressed in the same hearing, but it seems likely that both issues would be settled virtually at the same time before the same judge.

On the other side of cyberspace, EFF posted a press release Monday at an unknown time that hails the judge’s “final approval Monday [of] a settlement for music fans who purchased Sony BMG music CDs containing flawed copy protection programs.” EFF’s press release is silent about fee recovery, but that is not unusual: it would be odd for any law firm or legal organization to trumpet the legal fees it received as part of a class action settlement, especially during a time when trial lawyers and their fees are constant political targets for conservatives.

Further, if word got out that EFF earned a $2 million fee, it could hamper the organization’s future fundraising efforts. The public would be likely to think that the organization needs fewer at large donations given its large take in this case. So it is understandable if you read both stories and remain confused. Hopefully Ars or some other outlet will post an update or clarification.

The post was updated on Tuesday, May 23, 2006 at 0831 hours EST. The update includes expanded coverage of the terms and conditions of the settlement. — KMD

“The Sony BMG rootkit case, though long since faded from the headlines, has still not been resolved. Sony responded to the outcry (and the associated lawsuits) by promising swift action, and recalled the affected CDs. It also moved quickly to settle the major class action lawsuits filed against it, but, as we reported earlier, final approval of the proposed settlement is still pending. The final sticking point? Legal fees for the Electronic Frontier Foundation.

“The EFF has requested almost US$2 million from Sony BMG for its work on the case. Most such requests proceed without problems, and in fact Sony is not objecting to a larger amount requested by lead counsel. But it does object to the EFF’s request, and has filed several strongly-worded documents with the court, arguing that if the EFF deserves anything, it should be under US$100,000.

“Sony BMG’s objection centers on the fact that the settlement was largely hashed out by the time the EFF got involved in the case.”

Ars Technica. Sony BMG Balks at EFF Legal Fees. May 22, 2006.

See also:

Anne Broache. Sony Rootkit Settlement Gets Final Nod. News.com. May 22, 2006.

Electronic Frontier Foundation. Judge Grants Final Approval for Sony BMG CD Settlement. (Press release) May 22, 2006.

Electronic Frontier Foundation. Sony BMG Litigation Info.

U.S. District Court, Southern District of New York. Defendant Sony BMG Music Entertainment’s Memorandum In Opposition to the “EFF Group’s” Motion for the Award of Attorneys’ Fees. (.pdf) May 21, 2006.

CopyCense. CopyCense’s Sony-BMG DRM Bibliography (v. 1.1). Feb. 2, 2006.

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