EFF Manufacturing Scandal in the Service of Google


On October 25, four days after the unprecedented removal of the Register of Copyrights from her office, the Electronic Frontier Foundation released a post on its Deeplinks Blog asserting rather stridently that the Copyright Office never would have reviewed the FCC “set-top-box” proposal if not for the urging of the MPAA.  I think we can now say that there is officially no line EFF will not cross, no lie it will not tell, in the service of Google’s interests over the public interest, which the organization claims to serve.  The thesis of the blog post boils down to the following syllogism:

1. We have argued that the FCC “set-top-box” proposal does not implicate copyright law.

2.  Because we are obviously correct in this view, the Copyright Office should have agreed with us.

3. Therefore, the only explanation for the Copyright Office disagreeing with us is that they must have been pressured by the MPAA.

And so, the EFF went looking for proof of the motion picture industry’s clandestine influence on the Copyright Office via a FOIA request, and they released supporting documents with their blog post that they know most people won’t bother to read.  If anyone does read the super secret emails betwixt FCC, MPAA, the Copyright Office, and the USPTO, they will discover (hold your breath) requests for meetings to discuss issues of concern with regard to the FCC proposal!  Ah ha! Meetings!

I know this may be a shocker, but there is nothing illegal or improper about any stakeholder, operating above board, requesting meetings to discuss concerns they may have with a proposal by any federal agency.  And emails to arrange meetings—I mean literally communications as banal as, “Hey, does next Tuesday work for you?”—are not subject to any rules regarding disclosure because they’re not substantive.  Nowhere in the “exposed” communications presented by the EFF is there any evidence of motion picture representatives drawing conclusions for Register Pallante that she would not have come to on her own with regard to the FCC “set-top-box” proposal.  The FCC proposal, like any other federal agency proposal, allows for comments from multiple stakeholders that become part of the public record and which members of any other agency may read and consider.  It is also neither illegal nor improper for a stakeholder to send an email to a member of an agency to say, “This is our statement for your consideration.”

The broader point is that one does not need to be an expert at the level of Maria Pallante or MPAA’s attorneys to consider that any proposal which fundamentally alters a licensing paradigm between producers and distributors—as the FCC proposal clearly does—is going to have at least some copyright implications.  Had the EFF made a more nuanced argument, that would be one thing, but to assert that the Copyright Office simply never would have entertained a copyright angle without pressure from the MPAA is just an outright lie.  What the EFF doesn’t like is that their position on the FCC proposal is wrong, and so they’ve tried to manufacture a scandal on the heels of Pallante’s unprecedented and bizarrely orchestrated removal from office.  Why?  Presumably, because they know that at least a segment of the public will find the Hollywood-intrigue narrative easier to follow and far more dramatic than the more complex, but less interesting, truth.

On the other hand …

If a hint of scandal is what the reader wants, consider the October 25th notice from the Campaign for Accountability, which asked FCC Counsel to investigate emails between the FCC Chairman Tom Wheeler and Google VP Vint Cerf.  What’s the problem? Unlike innocuous emails requesting meetings, the FCC’s rules require disclosure of ex parte communications that amount to substantive comments on policy.  In its letter to counsel, the CFA cites an April 8th email from Mr. Cerf to Chairman Wheeler expressing his substantive views with regard to the commission’s April 1 notice on protecting consumer privacy within the ambit of the “set-top-box” proposal. In case you’re not following the bouncing ball, Google likes to harvest user data and doesn’t have great track record on the privacy thing.

See what happened there is that a Google executive expressed a relevant, policy-focused comment via email pertaining to the FCC proposal, and the FCC was supposed to disclose the comment and didn’t.  At least that’s CFA’s view.  Whether or not there are more communications of this nature remains to be seen, but against the backdrop of Google’s now well-documented influence throughout the current administration, it’s hard to imagine that anyone is still believing the narrative that “Hollywood” is pulling the strings with regard to the FCC proposal.

Perhaps more significantly is that while the EFF pitches a non-scandal in an effort to erase the copyright implications of the FCC proposal, they seem remarkably unconcerned about those privacy implications, which one would think should to take precedence for an organization claiming to defend consumers in the digital market.  Why?  Assume for the moment that the producers are wrong about the proposal undermining the investment model that creates television shows. That would still leave the privacy concerns with regard to what kind of data Google would be allowed to harvest from the magic TV box it wants to put in your home.  The EFF’s overplayed hand on the copyright issues combined with their silence on the privacy issues related to the FCC proposal suggest that this organization largely cares about one thing:  whatever Google wants.

© 2016, David Newhoff. All rights reserved.

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  • Yeah, that’s right. EFF only does what Google wants and isn’t at all concerned about privacy implications of Google’s actions. Oh wait: https://www.eff.org/files/2015/12/01/ftccomplaint-googleforeducation.pdf

    What? An ongoing FTC privacy complaint that the EFF filed against Google? Why, that almost makes your argument look completely wrong and uninformed.


    Not everything is a Google plot. And anyone who thinks Google controls EFF is so clueless as not to be taken seriously.

    • Indeed, their complaint in the Education initiative excuses their outright lies regarding the FCC proposal. Anyone who thinks the MPAA controlled the Copyright Office is too clueless to be taken seriously. I’ll be the first to admit that EFF looks rather bi-polar at times–defending privacy one minute and apparently turning a blind eye the next. Whatever, Mike. I’m well aware that EFF will go after Google from time to time, and only they know why they chose to overlook privacy in the FCC proposal and completely make shit up with regard to the copyright implications.

      • You’re wrong and don’t know what you’re talking about. Honestly, David, you’re really really off-base on this. If you even remotely care about getting stuff right, you’d listen. But you don’t. So you look like a fool. Sorry I tried to educate you. I should have known better.

      • Slow day at Techdirt, Mike? I don’t know how many times I’ve criticized the EFF at this point, but this post sure as hell isn’t the first. It seems that something sticks in your craw about this one, but I’m guessing it isn’t a personal faithfulness to the truth. You’ve spewed enough bullshit about copyright and contemporary economics to blow a server farm but presume to have the chops to “educate” me? That’s adorable. And we look foolish to who exactly? The EFF, PublicKnowledge, Fight for the Future, Google, or the readers of Techdirt? No problem. Not even a fool would choose to sit at that kids’ table.

        It’s remarkable that this post somehow attracted your attention and that you’re in a snit about whether the EFF’s stupid, fucking, indefensible position intentionally supports Google’s power grab or whether their stupid, fucking, indefensible position unintentionally supports Google’s power grab. Because my beef is with the EFF lying about a) the nature of the FCC proposal; and b) compounding that lie by saying that the CO would not have commented on the proposal without some sort of undue pressure by the motion picture industry. You’re defending that utter pile of garbage in the name of “the truth?” Please.

        In fact, among those who are critical of the EFF’s positions, I tend to pull more punches than many on the accusation that they exclusively serve Google’s interests; but in this particular case, their position is hard to fathom by any other rationale. Perhaps they sincerely believe the FCC proposal is good for consumers, in which case, they’re just wrong; but that still doesn’t excuse inventing a scandal that didn’t happen or vilifying Pallante because they don’t like copyright.

    • Hang on a minute the EFF’s normally complaints about Google tend to occur only when Google have already been caught bare ass up a flag pole without wearing any pants. Then any fines imposed on Google get dispensed back to the EFF rather than the kids. That’s the way it worked for your fellow shills a few years back.

      BTW no one says its a ‘plot’ rather that you are all in the same club and what is good for the club’s elite is good for the rest. Sort of a Silicon Valley masonic lodge, rolled up trouser leg, secret handshake sort of thing.

      • Thanks for the morning chuckle, John. And you raise a good point about EFF’s financial interests with regard to awards. How much of UMG’s money would it like to take in the Lenz case again? A case in which Lenz’s “financial harm” amounts to the EFF’s deferred fees it would like the court to now award the EFF from UMG’s coffers for their decade-long boondoggle.

      • We know where the EFF and Techdirt align themselves when something really affects Google’s bottom line. Take the ECJ “Right to be forgotten” which both groups have whined about. Techdirt was whining again last week:

        WRT wikipedia. Jimmy Wales being a Google spokesman against the RTBF. Since 2014 under the RTBF wikipedia has had less than 30 pages delisted. It boasts some 5 million articles so we are talking about 0.0006% of article pages. The pages are things like:
        Typical articles that are used as coatracks or to associateenemies with such as “Are all men pedophiles” and “Apostasy”

        or pages where they drag in the name of some schuck in order to ‘construct’ a controversy.

        IOW Techdirt along with wikipedia are manufacturing an issue where no issue actually exists.

      • John, this is also hilariously wrong. (1) The ONE time that EFF got money from a privacy complaint, doesn’t match the situation you described. That was a case that didn’t involve EFF at all until the cy press stage. So, yeah, you’re wrong. (2) This situation, where EFF went to the FTC doesn’t match your description at all either (in fact, I think EFF got this one wrong and they’re misunderstanding the privacy implications). Even a group of famous privacy advocates (with no connection to Google) have said that EFF is wrong on this. So, nope. You’re wrong.

        And, yes, David directly stated that EFF only does what’s good for Google which is blatantly false and makes David look like a fool. You look foolish for ignoring his blatantly false statement too.

        It’s funny to watch you guys flail around and assume something that just isn’t true. There is no “club.” There is no “lodge.” There is no secret handshake. There are a lot of different people and organizations with different motivations. Sometimes they agree, sometimes they disagree. If you recognize that, you can understand how foolish you look when you assume otherwise. And, trust me, you guys look super foolish.

      • Is this the same Mr Masnick that squealled about copyright violation when some UK newspaper used his wife’s photo without permission?

        here is no “lodge.” There is no secret handshake.

        What about the rolled up trouser leg?

        Sometimes they agree, sometimes they disagree.

        So in the last 16 years exactly how many times have the EFF taken issue with Google? Which as we know is a quasi-criminal organisation.

        And given Techdirt’s alignment with Google on the “Right to be forgotten” its no wonder that you aren’t too keen on this EFF action. Perhaps, if as you say it is badly case destined to be lost, the cynical amongst us may say that by taking the EFF is simply providing cover for the fact that it is no individual rights based organisation at all.

        They have been inserting little memes in everybody’s mind
        So Google’s shills can shriek there whenever they’re inclined

      • *Is this the same Mr Masnick that squealled about copyright violation when some UK newspaper used his wife’s photo without permission?*

        No. It is not. I don’t even know what you’re talking about.

      • Sorry confussion with Doctorow but after awhile the Google supporters all seem the same.

        Not going to comment on your outlets continued confusion of privacy invasion with free speech. Oh well shouldn’t be surprised.

        They have been inserting little memes in everybody’s mind
        So Google’s shills can shriek there whenever they’re inclined

      • The hipocracy of shills like Masnick and the EFF is mind boggling. On the one hand they’ll tell you that tracking IP addresses in P2P swarms is an privacy invasion, and on the other hand, monkey like, see ‘no evil’ when their tech masters track the browsing, locations, listening, reading, and buying habits of their users. Masnick invokes a load of mental gymnastics to say that sell on those details to others in the form of ad auctions isn’t the sale of personal data:


        And here he is justifying his lordlings facilitating the sale of chemical abortions sans prescriptions:


        now I’m pro abortion and the right to choose but I do think that it ought to be done with proper medical supervision.

        They have been inserting little memes in everybody’s mind
        So Google’s shills can shriek there whenever they’re inclined

      • John, you were wrong before and you’re wrong again. Why make up conspiracy theories? A simple search will show that we frequently criticize Google. Contrary to the conspiracy buffs, I do not work for them and do not agree with them on lots and lots of things. I mean, honestly, if I were a shill, would I be writing these:




        It’s almost as if — just as I said earlier, we’re individual people with individual opinions and sometimes we agree with Google or EFF and sometimes we don’t. No “shilling.” No “conspiracy.”

        Also, you totally misread the two links that you put there. I wonder why you would selectively pick stories and then misrepresent them, ignoring all the other stories that debunk your tinfoil hat conspiracy theories?

        Have a bit of a bone to pick — so much that you’re going to blatantly lie about me? Very convincing.

      • I’ve not misrepresented those links at all. The collating and selling of user data gleaned from tracking people across multiple sites, examination of their emails, search history, and social networks is the same category sleaze as sale of information gleaned from one site. It is the exploitation of information given in one situation for an different purpose that the user did not knowingly consent to. Whether or not the data sold is a name and address is immaterial. One has to jump through a lot of mental hoops not to appreciate that the exploitation is the same. Why would you do that?

        Regarding the second link the sting on Google was specific to drugs that were banned from sale without a perscription. Such things as steroids, human growth hormone, narcotics, and abortion pills. The sting artist was clear in his dealings with Google exactly what he was selling and that he wasn’t a licensed pharmacy,

        It ought to have been obvious to any one that an organisation the size of Google doesn’t get a $500 million fine simply for facilitating the sale of cheap paracetamol. One has to have abandoned all sense of reason to push the view that it was all about protecting big-pharmas profits. Why would you do that?

        So no we aren’t into conspiracy theories, and you haven’t be lied about at all.

        They have been inserting little memes in everybody’s mind
        So Google’s shills can shriek there whenever they’re inclined

      • Regarding Mr Masnick’s links above the conclusion one may reach is that he is quiet prepared to whine about Google when their actions directly affect him. When their actions affect others the response invariably is “suck it up”.

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