The EFF assumes the worst – of everyone else.

“Speaking of shotguns,” a Chilean idom I learned from an old school friend to describe an abrupt change of subject, I came across this article from NBC News about a new report on the Theft of American Intellectual Property, which covers issues to do with serious cyber-espionage threatening both national security and economic interests of the United States.  Apparently, the report raises the prospect of using certain defenses, including watermarking data, tracking unauthorized access, and even “boobytrapping” likely hackers with malware that locks up their computer systems.  I haven’t read the report and am no expert in any of the technological remedies described, but near as I can tell, the story has very little to do with entertainment media producers and the DMCA.  Nevertheless, Corynne McSherry, Intellectual Property Director of the Electronic Frontier Foundation couldn’t resist the opportunity to change the subject and monger a little fear.

Whether the defensive tools mentioned in the article are sound remedies or not for protecting data like military or trade secrets from mostly Chinese hackers seems of little interest to McSherry who prefers to vilify copyright holders and the DMCA.  “The potential for abuse is extraordinary” McSherry says. “The long and shameful history of the Digital Millennium Copyright Act file takedown abuse teaches us that intellectual property owners cannot be trusted with the enforcement tools they already have  we should hardly be giving them new ones.”  The “long and shameful” true history of the DMCA is how utterly useless the mechanism is for rights holders to protect their works.  Many creators have demonstrated over and over again that the DMCA notice and takedown procedure is spitting in the wind for even very large, well-funded producers, and completely hopeless for independent and smaller rights holders.  Meanwhile, it is the industry that funds the EFF, who have made sure that DMCA remains a fly swatter in a storm of raptors.  And that’s bad enough, but to add insult to injury, McSherry sticks this fact in a paper bag and lights in on fire on our doorstep when she says the DMCA has a “history of abuse” by rights holders.  And one reason we can know she’s full of it, is the flimsiness of the cases her own organization chooses to take on as exemplary of this so-called abuse.

As described in this post and in the supporting post from Copyhype, the EFF stands on very shaky ground in its attempt to position a typical DMCA error as willful abuse in the case of Lenz v UMG.  To paraphrase Terry Hart, if there is such rampant abuse, why is this the best case the EFF can produce?  Is it perhaps because the headline “Prince sues grandmother” is too good a rabble-rousing opportunity to pass up?  And while McSherry carelessly lumps all rights holders into a single group and accuses them a priori of abusing tools most of them, like me, have never heard of, the total number of infringements against rights holders at this moment remains in tens of billions per day.

Publicly promoting the assertion that if rights holders had better tools to protect their intellectual property that abuse will naturally increase is insulting, irresponsible, and naive.  For one thing, most rights holders are in the business of doing something like making movies or building new energy systems; and the cost of protecting against attack is just that — a cost and a distraction from the core enterprise. In other words any business from a TV network to a shoe manufacturer wants to spend as little time and money on counter-theft as possible.  It would make just as much sense for McSherry to say that because Macy’s has video cameras throughout the store, false accusations of shoplifting are going to be out of control.

Interestingly enough, there is an omnipresent video case a bit like this in the UK, in which an innocent man, Eoin McKeogh, would like a video removed from YouTube that defames him as a cab fare deadbeat and resulted in the kind of cyber-bullying mob that is SOP at this point. I can’t say I’m surprised that defendants Google & Facebook haven’t voluntarily helped this young man clear his name, and it looks like they will only do so if ordered by the court. It’s almost as though we could say these tech companies’ absolutist defense of their technologies is, I don’t know, like an abuse of this young man’s civil rights or something.  But of course, these are tools, right?

It is the nature of even the best-meaning organizations to occasionally identify somewhat thin evidence of the general problem they’re committed to solving.  But in the relatively short time I have paid attention to the EFF, I find them usually unbalanced and often hysterical. It’s more than okay to raise a yellow flag and ask whether or not a security measure or legal remedy might adversely affect civil liberties? But it is rare that I read anything coming from this organization that has even a hint of the humble inquisitive or an acknowledgment that indeed creative rights holders, let alone other enterprises, have any problems worthy of concern in the digital age. As such, I find McSherry’s ham-handed, opportunistic attack on rights holders more or less business as usual.  The EFF claims to protect our rights in the digital age, but who protects our rights from the digital age?

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