Is Sony violating the law?

I’m not qualified to pass judgment on legal issues, so when I run across infuriating behavior like what Sony has been engaging in (see Sony wants to hijack your PC“>here for background), I try to find an expert on the subject. For this question, I can’t think of anyone more qualified than Ben Edelman. He’s most famous as an expert on spyware, which is noteworthy given the spyware-like behavior of these copy-protected CDs.

I asked Edelman if he thought that Sony’s behavior was potentially illegal. Here’s his reply:

It all comes down to consent. If Sony’s EULA is taken to obtain a user’s consent for the installation, perhaps Sony is on strong ground. But if the “consent” procedure is deemed defective (too vague, too hard to find, no clear manifestation of assent, too inconsistent with the premise of buying a CD), suddenly Sony is in trouble — for a nonconsensual installation of software onto users’ PCs. One might reasonably accuse Sony of committing a trespass to chattels, or even of exceeding authorized access to a computer system (a Computer Fraud and Abuse Act violation).

I’m also struck by the fact these items, though apparently labeled as CDs and of course sold in CD stores, aren’t actually genuine CDs (as the official “red book” CD standard defines that format). Could Sony be committing fraud by claiming to sell users CDs, when in fact what Sony is offering is something else altogether?

There are a pair of 800-pound gorillas that might have something to say about that latter question. One is Philips, which owns the CD trademark and has been vocal about its objections to copy protection since at least 2002. If Sony is using the CD logo, they’re infringing on that trademark. The other party who might want to stomp on Sony is Eliot Spitzer, Attorney General of the State of New York, who has already taken on some big names in the spyware industry. I hope he’ll weigh in here.