EFF Has Outlived Its Usefulness?

An anonymous reader writes "An inflammatory article runs today on The Register, with the title EFF Volunteers to Lose Sony Rootkit Suit. The article argues that the EFF's track record in court is detrimental to everyone with an interest in digital and privacy rights." From the article: "This is a very good cause. Sony installed stealth spyware on many thousands of Windows computers (although calling it a rootkit is an exaggeration), and it's crucial that the company get its bottom spanked quite painfully as a deterrent to its sister cartels in the entertainment racket. This is, in fact, such an important matter that the worst possible development would be to find the EFF arguing the case. That's because EFF will do what it always does: lose, and set a legal precedent beneficial to the entertainment pigopolists. By the time these pale vegetarians get finished, spreading musical malware will be considered a spiritual work of mercy." What do you think? Isn't it better to fight the good fight?

Comments

What do you think?

[waynegoode]

What do you think? Isn't it better to fight the good fight?

As the article clearly states, the question is not whether to "fight the good fight", but rather, who should fight the good fight. The article isn't inflammatory. It asks the legitimate question of whether the EFF should handle the Sony DRM case.

If you have to fight

[Colin Smith]

Fight dirty and fight to win. You use any and every method at your disposal to put the other guy down and make sure he doesn't get back up. There is no honour in fighting, there is no glory. There is no good fight.

Re:If you have to fight

[Kenneth Stephen]

Not to invoke Godwin's law or anything, but if one were to indeed use any means necessary, then the Nazi's didnt really do anything repugnant with the concentration camps. The Japanese didnt do anything wrong with Pearl Harbor. And Saddam Hussein didnt do anything wrong when he gassed the Kurds. And, using your argument, there wouldnt seem to be anything wrong with the actions of the 9/11 bombers either.

As in all things, there are limits. The ends do not always justify the means because as someone else put it "what good is it if you win the war but lose your soul?".

Re:'Inflammatory' indeed.

[ergo98]

After reading this 'article' (and I use the term loosely), one is left wondering if this "Bonhomie Snoutintroff" has an axe to grind against EFF specifically, or if EFF was simply unfortunate enough to present an accessable target for one of "Bonhomie's" mindless rants.

Or maybe it was just a great topic to earn a Slashdot swarm? Writers often have little personally invested in the things they write about. Instead they write what people want to hear, or what they know will get them attention (see John C. Dvorak). I doubt the apparently fake guy has an "axe to grind".

In any case, even flamebait stories like this often have a grain of truth to them, and if it does inspire some discussion it can be beneficial. For instance there is truth that precedent is extremely important, and it is critical that early cases are argued as effectively as possible.

humorless prigs

[rodentia]

Cultures not dominated by humorless prigs and literalists don't require flags to signal humor.

This particular form is called satire and is widely used to call attention to self-importance or arrogance.

Re:humorless prigs

[Dun Malg]

Cultures not dominated by humorless prigs and literalists don't require flags to signal humor. This particular form is called satire and is widely used to call attention to self-importance or arrogance.

The trouble with many brits is that while they understand the basic concept of traditional dry british humor, they almost always do it badly. They mistake deadpan delivery of random combinations of weak sarcasm and patent absurdity for wit. They then claim the audience is too low-brow to catch the subtlety of the humor, when in reality it's just not particularly funny.

Precidents like...

[SuperKendall]

...but the fact remains that if precedents are being set here...

You mean Precidents like These? Or lobbying efforts like getting rid of the broadcast flag?

Should any organization be required to win 100% of its legal battles (on behalf of the public I might add) in order to gain support? I don't think setting an impossible standard is a helpful guide for deciding what organizations to support.

The EFF has been fairly effective in legal matters, and even more effective in educational areas like lobbying. AS that is the key to a better future (better to never have a bad law passed than to fight it latre through the courts) it is important to support the EFF as they are pretty much the ONLY group that understands the deep technological chasms laws can veer into. Are you honestly going to trust the ACLU to handle stuff like P2P?

For those who see the value in having an organization fighting for technical rights, you can donate to the EFF here. I donate every year and really all of us in the technical field should feel ashamed if we are not supporting the people that brought down things like the broadcast flag.

I dunno

[paranode]

Is it better just to fight the good fight? Not if you are a poor fighter. In the legal arena, these rulings stick and we get the precedents in favor of RIAA/MPAA/Sony/etc. If the EFF has such a poor track record, maybe they should stick to lobbying and let the ACLU or state governments (like Texas and others) do the suing. It doesn't do us a whole lot of good if our battles are lost because the representation is poor, but it can do us harm.

Re:I dunno

[IAmTheDave]

Not if you are a poor fighter. This is hard to get my head around. Is the EFF bad? How many times have friend-of-the-court briefs been filed by hundreds of agencies supporting the EFF, and yet no matter how much support they have, no matter how logical their argument, the courts side with big business.

Is this the EFF losing, or is this just corruption of the courts?

Re:I dunno

[einhverfr]

IANAL, so take this with an appropriate amount of salt.

Often the battles for our rights are far more subtle than they appear. These center around what evidence is admissable before the court, on what basis one can be found guilty for violating laws, and on what basis one can be found liable for damages. It is in these areas that the meat and substance of a precident lie.

For example, in the Betamax case, the court ruled that it was insufficient to argue that because Sony knew that the Betamax VCR's could be used to violate copyrights when arguing that Sony should be held liable for damages caused by users of the product. This isn't really surprising. Just because a hardware company knows that, say, a hammer could be used for various types of illegal activity up to and including murder, one would not really consider holding them liable for wrongful death damages on that basis alone (and appeals courts have releatedly upheld the same standard for gun manufacturers too). In essence, the court said in Betamax that if a product has substantive legal uses, then knowledge of potential or actual illegal uses is insufficient to hold the manufacturer responsible.

In Grokster, the court looked at whether a manufacturer (under Betamax) could be held liable on grounds other than those covered in Betamax. I.e. if Betamax created a shield that would allow for activities conducted in bad faith to be legally protected. SCOTUS concluded that Betamax only protected the acts of engineering, manufacturing, and distributing the technology, and that arguments could be made about whether the purpose of the company or the product was specifically to facilitate copyright infringement regardless or substantive legal uses. In other words, if you make P2P software, that doesn't make you liable, but if you advertise it saying "Download any songs you want" then that advertisement itself might make one liable. This distinction is a critical one and, in many ways, it upholds the substantive protections we have had under the Sony/Betamax precident (Breyer's concurring opinion is probably most eloquent in this regard).

Lets take another example that is not in the domain of the EFF: Jose Padilla. This is a man who was (arguably illegally) imprisoned without trial, access to a lawyer, etc. for three years and has finally been indicted on charges that are fairly minor compared to what he has been accused of doing by our government. Now, I don't really care whether he wins or loses his case. Indeed I hope that in the end justice is served. However, I think that the Supreme Court needs to rule on the legality of Padilla's imprisonment for a number of reasons including what evidence might be allowable at trial and whether the government might have an incentive to undertake similar steps against others in the future. In essence the danger posed by someone like Padilla is far less than the danger posed by an Executive that has freed itself from judicial oversight. In other words, whether Padilla wins or loses, the rules decided in this case may be around for a while, so it is important that we reinforce the protections that we have against arbitrary imprisonment.

In essence, I don't believe that the EFF is doing a bad job. There are a few cases that have gone badly (most notably the 2600 case) but in general, they seem to be doing a good job. I say, "Keep up the good work!"

It's funny -- laugh

[hcg50a]

The "article" cited by the paranoiac submitter is an opinion piece, and it is rife with humor, starting with the author's name. The submitter (and a lot of readers here) are taking this opinion piece way too seriously.

Instead of whining about it...

[YouHaveSnail]

...maybe we should all actually do something to help. There are lots of ways to help. Groklaw is a pretty good model for how to get the word out in a clear way and really motivate people.

It wouldn't hurt to help the EFF out with a donation in this holiday giving season. If the EFF is losing cases that it ought to be winning, I don't imagine that it's for lack of a clue. It's probably just outgunned by the huge, deep-pocketted corporations and industry associations that it takes on. EFF and ACLU seem like the two best organized outfits that are standing up for our rights, so search your sofa for loose change and help 'em both out.

And although it sounds tired, it never hurts to let your elected representatives know what you think. If they hear from enough of us, they really will do something about it.

story as old as time

[circletimessquare]

well meaning idealism doesn't work in the real world

pragmatism does, and you don't have to sacrifice any of your ideals to be pragmatic about how to work them. in other words, you don't sacrifice your principles by playing them correctly, it's an unfounded fear that by playing it any other way except straight you are somehow sacrificing your ideals. this is not a cynical observation, it's a tactical one

the ivory tower approach to life may well make you feel smug and superior in life, but it doesn't help with a messy struggle in the mud. you don't lose when you go the idealistic route, you just wind up not playing the game, and becoming irrelevant to the causes you care about

Difficult to argue policy

[Kevbo]

For the most part, the EFF argues policy when they go before the judge. It is very difficult to take the stance that EFF does and say, to this effect: "Even though Eric Corley/Grokster/etc violated the statute, it does not stand to reason that this party should be at fault because the very nature of the statute is wrong." Or something to that effect.

The EFF takes the most difficult side and tries to prevail. Even if they are not successful in the courts, they are certainly successful at raising awareness. Furthermore, there is no "public defender" for copyright cases. If you violate someone's copyright, you are paying for your own lawyer. The ACLU is not going to jump in, so your only chance at a defense is to spend out-of-pocket, or get an organization like the EFF to back you up. Even if you do pay money for a lawyer, much of his work has been done by the EFF, which results in lower fees for the client

I do not think the EFF has outlived its usefulness.

MGM v. Grokster

[einhverfr]

I read the SCOTUS opinion. The EFF might have argued for the losing side, but SCOTUS did let the Betamax precident stand, and even declined to further limit it. Please take what I write with a bit of salt, for IANAL.

What SCOTUS said was that Betamax (AKA Sony) was not a carte blanche to facilitate copyright infringement, and that actions taken outside the realm of actual.technology are legitimate targets. In other words, technology per se is off the table provided that it satisfies Sony (the precident, not the company). However, if I sell photocopiers and say "Buy my photocopiers! They are great to copy books with," then I may have stepped over the line.

In many very important ways, the technology community won a number of important victories in the Grokster case, and the media companies were given an arguably fair system, and this is likely to help forestall the next wave of media-bought acts (for example, keeping the INDUCE act from being reintroduced).

Re:'Inflammatory' indeed.

[mspohr]

You're opposed to civil rights for everyone?

The ACLU supports civil rights. The way "the system" works is that it takes away the civil rights of the most despised (terrorists, etc.) and disenfranchised (poor, underclass) first and most people support these actions since these people are "evil".

The problem is that once "they" have established the right to take away civil rights, they can come after anyone (even you) if they don't like what you are saying or doing... it's a slippery slope.

The result is that the ACLU often finds itself defending some pretty odious people on principle. This clearly turns off most conformist people who don't understand the basic prinicples that are being defended.

The old saying... "I may not agree with what you are saying but I will defend (to the death) your right to say it." (attributed to Voltaire)

Now if you are a true Republican (American Republican, not of the French Republic), you will disavow this since Voltaire was FRENCH.

And that's why Trotskites suck.

[Ungrounded Lightning]

Congratulations. You've just given us a graphic demonstration of why Trotskites suck.

Promote more of the very thing you hate in order to make the people hurt enough to drive them into revolt? Look at what happened with your own example, prohibition.

The temperance movement got a ban on liquor - a recreational drug with significant downsides. Net effect was to make it more popular and fund the development of organized crime, the BATF, and self-defense bans in the US.

After a decade of horrendous body counts and far larger counts of people injured by adulterated product and gang violence, public pressure finally got the law repealed. But the dead were still dead, the crippled were still crippled, and organized crime is still with us - along with the out of control bureaucracies, which were converted to drug (starting with marijuana) and firearms law enforcement rather than disbanded.

The harm continues, and escalates, to this day, with urban drug gangs and violence, RICOing of drug users' assets, and such debacles as Waco and Ruby Ridge.

All this over the freedom to have a little drink when you party.

Yet you advocate repeating this DELIBERATELY as your solution to restrictions on information technology? A decade of war - or more, since that technology is the main tool of resistance?

Then there's the other thing such groups do: Disrupt any tyranny-resistance organization that isn't doing things THEIR way, in order to take it over if it can be, destroy it if not. Here we have the first meeting of such an organization, and (as is usual for first meetings) it has a lot of disorganization and a heavy sprinkling of well-meaning flakes among the activists. These things generally get sorted out quickly, if proceedings aren't disrupted. So what do you do? When they don't instantly do things your way, you disrupt them.

Congratulations. Maybe you killed it. Maybe you just made it less responsive to popular input. But you certainly aren't getting the problem solved.

Unless the problem is Trotskyites - and other, similar, communist/socialist factions.

That problem you're putting right in people's faces, so they can see what you are.

Back in the '60s we had a saying: "Trots are a case of the slow runs." Thanks for showing us it's true in the naughties as well.

Losses overreported by the pigopolists, perhaps?

[Urusai]

Remember who controls the media and manufactures consent thereby. This is the same media that managed to make Kerry the decorated war vet look like a pansy compared to a guy who skipped out on his skipping out of Vietnam.

Re:'Inflammatory' indeed.

[ChaosDiscord]

They're quick to defend the rights of an artist who has created something that some people find objectionable...provided that it's not a Christian nativity scene on someone's front lawn that non-Christians find objectionable. The ACLU is strangely silent when that happens.

Oh is it? "September 20, 2005: ACLU of New Jersey joins lawsuit supporting second-grader's right to sing "Awesome God" at a talent show." "December 22, 2004: ACLU of New Jersey successfully defends right of religious expression by jurors." "November 9, 2004: ACLU of Nevada defends a Mormon student who was suspended after wearing a T-shirt with a religious message to school." "August 11, 2004: ACLU of Nebraska defends church facing eviction by the city of Lincoln." "February 21, 2003: ACLU of Massachusetts defends students punished for distributing candy canes with religious messages." "July 11, 2002: ACLU supports right of Iowa students to distribute Christian literature at school." April 17, 2002: In a victory for the Rev. Jerry Falwell and the ACLU of Virginia, a federal judge strikes down a provision of the Virginia Constitution that bans religious organizations from incorporating." "January 18, 2002: ACLU defends Christian church's right to run "anti-Santa" ads in Boston subways."

Wow, that ACLU sure does turn a blind eye to protecting religion.

I'm quite sure that if a city specifically shut down a nativity scene on private property that the ACLU would be all over it. (Assuming, of course, that the situation was biased. If the city shut down everything on everyone's lawns, navity scenes and garden gnomes alike, it would be stupid, but legal and fair.)

One of my civil rights as a law-abiding citizen is my right to own a gun. Why do we have the NRA? Because the ACLU doesn't defend this right; we need another organization to pick up the slack.

Why do we have an EFF? The ACLU already spends lots of effort fighting for the exact same causes that the EFF does. Ultimately because some peopl prefer to focus in particular areas more than the ACLU does. I suspect the NRA would exist even if the ACLU did defend gun rights.

On that particular issue, well, yes, the ACLU has a different interpretation of the second amendment. I don't actually agree with their assessment, but they're hardly hostile to gun ownership Unless you found the organization, I doubt you'll find an organization that you entirely agree with. I chose to accept that and support several organizations that work in areas I care about.