Should Artists Sue Sony BMG for damages?

Sony is getting into deeper and deeper trouble with it's DRM fiasco.

If you haven't heard about it yet here is a link to a previous post, even though Sony recalled the 52 titles tainted with the Rootkit, they remain on the shelves.

"It is unacceptable that more than three weeks after this serious vulnerability was revealed, these same CDs are still on shelves, during the busiest shopping days of the year," New York Attorney General Eliot Spitzer said in a written statement. "I strongly urge all retailers to heed the warnings issued about these products, pull them from distribution immediately, and ship them back to Sony."

Sony BMG responded to the accusation with a "not our fault" memo:

"We appreciate the attorney general's reinforcement of our efforts, and on Wednesday [Nov. 23] we sent a follow-up message to remind them to remove XCP content-protected CDs from their inventory." says Sony BMG spokesman John McKay.

Pressure is increasing on Sony. Texas has filed suit alleging their new anti-spyware law has been broken. Homeland Security accuses them of uindermining computer security and New York state is investigating filing as well. While this is happening they still have not replaced the CDs on store shelves. Making the CDs either unavailable or unwanted by consumers.

The rootkit blunder continues to inspire consumer outrage and affect sales of artists who produced the affected CDs. The ranking of Van Zant's Get Right with the Man CD plummeted on Amazon.com's bestseller list in the wake of Sony BMG snafu.

And when Sony BMG started pulling CDs, it didn't have enough replacements lined up, says Ross Schilling, of Van Zant's Nashville-based manager, Vector Management.

Sony BMG had promised the CD would be swapped out with non-rootkit CDs. Instead, the rootkit CDs simply were pulled, Schilling says. "It's obviously very bothersome," he says.

This is obviously hampering the profit of artists who procuce under Sony BMG's label.

That means Van Zant's CD and others were not on the shelves for the busiest shopping weekend of the year. Sony BMG has told Van Zant to expect a 50% to 80% decrease in sales when the new numbers come out on Nov. 30. That's in a week that should have seen a 50% to 80% increase in sales. The week of Nov. 9 to 16, Van Zant's sales actually jumped a point, a spurt Schilling attributes to exposure from the Country Music Awards.

Now that retailers are pulling the CD, there's potential for a 50,000- to 60,000-unit loss, Schilling says. "I believe they [Sony] went in with good intentions, but it turned into an unprecedented situation," Schilling says. "It certainly is harming the artist.... There's going to have to be some commitment made on Sony's side to their artists." To say nothing of the assurances Sony BMG may need to make to consumers and a couple of states' attorneys general.

Should the artists sue? An up to %80 percent decrease in sales is a very large matter. There are many indicators that are based on sales numbers. This is a heavy hit on not only their sales but possibly on achievement awards that are not based on numbers but on popularity. Listeners and consumers disdain for their label may transfer to them. While this is a fairly large issue for Sony, it is even larger for them. What arrangement could Sony BMG make to keep a potentially dissatisfied artist? Is money enough?

Spitzer Gets on Sony BMG's Case