Original URL: http://www.theregister.co.uk/2005/12/06/eff_needs_to_die/

EFF volunteers to lose important suit over Sony 'rootkit'

Still securing precedents for the other side

By Bonhomie Snoutintroff

Posted in Media, 6th December 2005 14:07 GMT

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.

Finally, EFF co-founder and board member John Gilmore has independently taken up one of the more important civil-liberties causes of recent years, attempting to sue for the right to travel by air within the USA without having to show identification. This is a very important case, and it's up for appeal later this week, so let's dwell on it a bit.

Indeed, there is no good reason why anyone should not be permitted to travel incognito, and many good reasons why one should. This is a case that can, and should, be won. Surely, only an EFF principal could blow this one, yet blow it he did. The combination of Gilmore's preposterous and inflammatory libertarian rhetoric and his unreasonable demand that he not be subject to any security measures, like a bag search and a pat down, mean that his appeal, scheduled for 8 December, will almost certainly go down the tubes with his original attempt.

The fact is, knowing who someone might be is not nearly as useful for security purposes as knowing whether or not they are armed or otherwise equipped to cause mischief. Indeed, the ID requirement has nothing at all to do with security; the airlines instituted it to prevent people from selling or giving away tickets they can't use, and so ensuring additional income.

So why does Gilmore object to the quite reasonable security measure of searching an incognito traveler's bags and person? Because he doesn't like to be searched, and thinks only about himself. His selfish, unrealistic demands will go a long way toward ensuring that this case is decided in favor of the busybodies. It's a very winnable case, but it will be a miracle if Gilmore wins it. He's doing everything possible to kill any hope that you or I might fly the paranoid skies and keep our identities to ourselves.

And so it goes: excellent taste in causes, catastrophic results. I personally would love to see Sony spanked over XCP. Sadly, with EFF on the case, it's only you and I who stand to take a spanking. And a rough one at that. ®

Bonhomie Snoutintroff is a plain-spoken strong leader in cyberspace. He did poorly in school but his family is rich and well connected, so he's served as CEO of numerous, well-known Internet ventures that for various reasons unrelated to his forward-looking guidance no longer exist. He developed a cocaine and alcohol problem, although he refuses to dwell on the past: his mission is to bring honor and dignity to the IT profession. His keen insight as a global techno-visionary is matched only by his Christian humility.

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