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EFF volunteers to lose important suit over Sony 'rootkit'

Still securing precedents for the other side

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Opinion The Electronic Frontier Foundation (EFF) is renowned for its impeccable taste in the battles it fights on behalf of consumers, and for its uncanny ability to stuff every case up in ways that lead to permanent injury for everyone except the entities they oppose.

So it's with some trepidation that we report their latest foray into inevitable - and for you and me, costly - failure. EFF is taking on Sony BMG over the infamous XCP "rootkit" distributed as a surprise DRM package in several of its music CDs.

The legal outfit has filed a class action lawsuit over Sony's XCP malware, and its MediaMax malware for good measure, demanding that the company repair all of the computers it has infected. And well it should.

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.

Lest readers think this prediction too pessimistic, let's review EFF's major accomplishments.

They sent Lawrence Lessig before the US Supreme Court to make a muddle of Eldred v. Ashcroft, an important case that's now settled in favor of the media pigopolists.

They persuaded Princeton University Computer Science Professor Edward Felten to withdraw from a talk on the old SDMI challenge, and later trumpeted it as an example of speech being "chilled" by DMCA threats. (Yet, once he'd enacted that media stunt, Felten delivered his talk at a different conference and survived without a scratch.)

Meanwhile, EFF sued to get a research exemption to the DMCA - a worthwhile cause to be sure - and, predictably, blew that as well. There's another precedent for the other side.

They defended two amateur online journos against Apple's ham-fisted effort to silence criticism, and got beat down severely: another bad precedent.

They also defended 2600 publisher Eric Corely, who was barred from posting or linking to the DeCSS DVD descrambling utility of "DVD Jon" fame, and they lost.

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