While this site was designed to track class action lawsuits relating to the Sony BMG / First 4 Internet XCP Rootkit, many have emailed asking for information about how they can sue Sony directly. There are a number of reasons that people want to pursue litigation on their own, including the amount of time it will likely take the class actions to make their way thought the court and fear that the compensation from the class action will be insufficient to cover the costs of dealing with the XCP Rootkit.

The first and easiest method is to contact a licensed attorney in your area. If your computer was harmed by the Rootkit, or perhaps infected with a virus that the Rootkit helped to hide, this would likely be a very good option, as the issues involved can quickly become too complex for most individuals to explain to the Court. Most attorneys will be willing to take on these types of cases on a contingency fee arrangement, meaning that you will have no out-of-pocket expenses; the attorney will instead take a percentage of the final recovery as their fee. If you don’t wish to pay a percentage, and instead wish to pay hourly, most attorneys will be happy to enter into that sort of arrangement as well.

There are a number of places that can help you find an attorney. You might wish to call your State Bar Association, or consult an online directory like FindLaw. If you wish to work with a smaller law firm, you might consult the Solo and Small Firm Practitioner list.

There is a second option, Small Claims Court. Your jurisdiction might refer to Small Claims Court as Justice Court or something similar. These Courts are designed to allow individuals to represent themselves in matters involving less than a certain amount of money, usually a few thousand dollars. The filing fees are low (averaging $50), the process relatively simple, and most disputes will be heard in a relatively quickly.

I have tracked down basic information for the Small Claims Courts in every state. For information specific to your state, simply pick it from the list to the right.

Some issues of note, however. You need to verify any of the information on these pages. Laws sometimes change, so if you have a question, ask. Most of the time, the Small Claims Court clerk’s office (which is usually in your county courthouse) will be able to give you limited assistance in filing your claim. Also, be aware that I am not an attorney and cannot offer legal advice. If you are uncertain if you have a claim, or have a legal question, you should consult a licensed attorney in your area. The links above should help you do that.

In most jurisdictions, you can also ask for money to compensate you for the costs of court, such as your filing and service of process fee. Make sure, however, that the amount you ask for (including any fees) is less than the jurisdictional limit of the court. Make sure the amount you ask for is based on your damages and not on some the phase of the moon or any other irrelevant thing. If Sony has harmed you, look at the money you’ve lost (including the cost of the CD), the cost of having your computer repaired or replaced, the time you have wasted trying to deal with your computer, and the value of any data lost to help you come up with a reasonable figure. If you’ve not been harmed (you’re not infected with the Rootkit) and are merely unhappy, Sony will take back the CD and replace it with a copy that is not infected with the Rootkit. Be careful, though, since Sony hasn’t said they won’t have some other form of copy protection on the disk.

Before you reach your court date, be prepared. You should:

  1. Make an outline your main points.
  2. Read what you wrote in your complaint, and be able to explain it.
  3. Be clear on damages that you're seeking, and why Sony owes you that specific amount.
  4. Organize your evidence, including the CD and your computer if you plan to use them as exhibits.
  5. Organize any documents you might have (Receipt for your CD, letters to Sony, records of phone calls to Sony, a log of your repair attempts) so you won't fumble when retrieving them to back up a point.
  6. Have two copies of all documents – the original for the Judge, a copy for you, and a copy for Sony.
  7. Line up witnesses with direct knowledge of the facts (the person who fixed your computer, anyone else who knows what happened) or "expert" witnesses (maybe a college Computer Science professor who didn’t fix your computer but can explain what the Rootkit does), and have a pretty good idea what they'll say.

On the day of the trial, arrive early with all of your documents, evidence, and witnesses. Check in with the clerk’s office and find out where to go. Be sure to put plenty of money in the parking meter or park in a garage. Be prepared to spend all day at the courthouse waiting for your case to be called.

Once you are called, you will be sworn in and given an opportunity to address the court. If you brought any witnesses, you will be allowed to call them and ask them questions. Sony will also get to ask your witnesses questions, and call witnesses of their own, if they have any. The judge may issue an immediate decision, or may wait and issue a written decision later.

Always be courteous to the Judge, and the rest of the people who work at the Court. Instead of “Yes” and “No”, say “Yes, your honor” and “No, your honor”. Direct all your comments to the Judge or to a witness. Never talk directly to the person representing Sony. Explain your issues as simply and quickly as you can without leaving anything out. If there are other issues that are not directly related to the case, you don’t need to tell the Judge.

If Sony does not appear when the case is called, you can ask for a “Default Judgement,” which means that the court will decide the case in your favor and award you the damages you asked for. The clerk’s office or the local Sheriff may be able to help you collect your judgement from Sony.