EFF: Helping the Pirates

I’ve long accused the EFF of being on the side of the pirates. They downplay the effects of piracy, do their best to throw up legal challenges to prevent any possible enforcement of copyright on the internet, hire vocal advocates of legalized filesharing, and even created tools to detect if ISPs were throttling BitTorrent traffic so ISPs could be dragged into court. Now a new CNet article is making the connection even more clear. Fred von Lohmann, senior staff attorney and author of numerous EFF articles has been instructing pirate groups on how to facilitate piracy, but avoid legal responsibility.

A few quotes:

According to Wood, LimeWire founder Mark Gorton testified that he and former company Chief Technology Officer Greg Bildson received questionable advice from von Lohmann. “Gorton states that another attorney, [von Lohmann], gave [LimeWire], including Bildson, confidential legal advice regarding the need to establish a document retention program to purge incriminating information about LimeWire users’ activities,” Wood wrote in her decision.

In his zeal to keep some of these services from being sued out of existence, von Lohmann has gone too far, say critics. During the Grokster trial, MGM’s lawyers noted that von Lohmann in 2001 wrote a primer called “Peer-to-Peer File Sharing and Copyright Law After Napster.” In the piece, von Lohmann advised that to “avoid liability,” operators should create “plausible deniability” by “choosing an architecture that will convince a judge…monitoring and control is impossible.”

In a paper titled “What Peer-to-Peer Developers Need to Know about Copyright Law,” von Lohmann wrote, “The court also found that Napster had a duty to monitor the activities of its users “to the fullest extent” possible. Accordingly, in order to avoid vicarious liability, a P2P developer would be wise to choose an architecture that makes control over end-user activities impossible.”

Is von Lohmann instructing file-sharing services on how to avoid violating the law here, or is he teaching them how to violate the law and avoid responsibility?

This isn’t surprising at all. It’s clear that the EFF and von Lohmann has always had an interest in helping pirates evade legal responsibility for copyright violations.

It’s worth reiterating what Dave Winer, creator of RSS and an early supporter of the EFF said about the EFF years ago:

I gave $5000 to the EFF when they started, I think it was in 1990, with the noble goal of protecting freedoms as our technology and culture move online. I think I have supported every cause the EFF has adopted since then, but that’s no longer true. I gave this a lot of thought, believe me, and had a long email exchange with Brad Templeton, the chairman of the EFF board of directors, and think they have become as radically polarized as the entertainment industry, and like Hollywood are now working against the interests of those they were meant to serve. The issue appears to be copyright, and it appears that the EFF believes there should be no copyright….

The problem with the EFF position is that in order to remain consistent, they have had to say that copyright doesn’t exist — if a policy or law restricts what a user can do on the Internet then that is a bad policy or law. The courts can’t agree with the EFF. I don’t agree with the EFF.

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