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Where is the American Civil Liberties Union When We Need Them?

October 15, 2010

If you are the average American, you grew up on a narrative promoted by many media outlets of the American Civil Liberties Union as an unassailable champion of freedom. The ACLU, the story goes, is part of the fabric of American society. This historiography is largely based in fact—the ACLU clearly has championed many, many causes for the greater good. No one in their right mind could argue about that.

There is also a long-term connection between the ACLU and the creative community in the US. This connection has many dimensions, but it is a deep and abiding bond.

Recently, however, the ACLU appears to have at least stumbled if not lost its way in its association with groups like the Electronic Frontier Foundation, a tax-exempt organization that has essentially devoted itself to destroying the professional creative community to the benefit of the consumer electronics industry.

That EFF will use any means necessary to achieve these ends is well-illustrated in its involvement in the recent Limewire case where the presiding judge admonished an EFF lawyer (well documented by CNET). It is also well to note the prideful statement by Lawrence Lessig to cheers at a recent iCommons meeting that he voted in his capacity as an EFF board member to fund the appeal of the Grokster case to the Supreme Court (resulting in a stunning loss for the enemies of creators). One can well imagine that EFF was confident in their continued success with that truly bizarre losing legal theory that was so well argued at the 9th Circuit–but which was so obviously flawed to anyone who didn’t go to an Ivy League law school. Another example is the “Goodbye and good riddance” comment of an EFF senior lawyer directed at the shabby treatment of Juan Williams by NPR.

ACLU has apparently cooperated with EFF in a number of recent cases, or at least both organizations supported the same side. Most recently the two were on the same side against creators in the Hurt Locker case when the plaintiffs filed multiple complaints against a variety of anonymous ISP users in Washington DC.

Let’s understand what is going on in these cases. Due to the interpretation of the DMCA notice and takedown procedures (conclusions which could only be reached by ignoring legislative history), especially in recent cases such as Veoh and YouTube, the big consumer electronics companies (especially Google) and their apologists have turned the DMCA safe harbor into a notice and takedown statute for which these companies are not burdened with doing anything at all to prevent hundreds of millions of instances of infringement on the Internet. So far, these courts have found that the task of identifying these infringements in the first instance is solely that of the copyright owner.

This is, of course, just as absurd a position as was the Grokster lower court decisions. Why is an argument for another day—but just imagine asking Vice President Biden, former Senator Fred Thompson, Senators Hatch and Leahy if when each of them voted for the notice and takedown they expected one company to get over a million notices.

So not only do the courts interpret the DMCA to require all copyright owners, including indie labels, artists and filmmakers, to track down all this infringing material, they are also expected to sue individual users. But creators can’t find out the identity of the offending users without a court order.

Sound fair to you? Not to me. It sounds like even more certifiable insanity to me, designed to hurt professional creators as much as humanly possible.

And the reaction from the users in the Hurt Locker case? They don’t want to give up their anonymity and they want to be able to appear in court to make procedural motions. To which the judge replied—sorry Charley. One or the other, dudes. Either take off your sheets or take your punishment.

So whose side is ACLU on in this one? You might think that the injustice of the application of the lower court decision in the Veoh case (what we call the “mob rule”) would resonate with an organization charged with protecting speech, including the speech of creators. Nope. ACLU are lined up against creators with the EFF on the pretext of protecting rights–just in case the judge in the case isn’t smart enough to figure out her role.

“For None of Us Are As Cruel As All Of Us”

Good news for the EFF and ACLU—the vigilante group Anonymous apparently (because they are “Anonymous”) launched DDOS attacks against law firms and companies engaged in comparable activities in the UK, not to mention the British government itself in the form of the UK IP office. Note—in the UK, which is something of a first. One can understand how law firms and companies engaged in a large effort can attract negative reactions from the EFF and vigilante groups, but you have to wonder where the ACLU is in these things.

This activity has now progressed to attacking the servers of industry trade groups, again something which has been going on for a long time. (This apparently is also Anonymous which has taken credit for DDOS attacks, and other stalking type behavior against the Church of Scientology and AT&T.)

Again, you have to wonder where the ACLU is in such attacks. You know where EFF is—silent.

Predictably, these attacks have now moved directly against artists. Gene Simmons of KISS made some statements admonishing artists to protect their rights. His Internet presence was attacked—not because he actually did anything, but because of what he said. Because his speech was unpopular with vigilantes. Now where have we heard that before?

According to Slyck, “Gene Simmons is the latest in a string of targets that stretches back to early September. Among those targeted have been the MPAA, RIAA, Copyright Alliance, Ministry of Sound, GM Legal (Gallant Macmillan), DG Legal (US Copyright Group), and of course, ACS:Law.”

The Copyright Alliance, by the way, has nothing at all to do with any litigation. The Copyright Alliance is an effort by a broad group of companies to educate government and consumers about the value of copyrights—also known as—speech.

Did we hear a defense of Gene Simmons or the Copyright Alliance from EFF, that vanguard of civil liberties? Not a peep. Did we hear from ACLU? Nope.

You would think that these coordinated attacks should be enough to open a criminal investigation at the Department of Justice. But since the government isn’t acting, at least not yet, you would think that at least one of the EFF or ACLU would fulfill the role they have identified for themselves and speak out to defend Gene Simmons and the Copyright Alliance in the exercise of their First Amendment rights. And maybe even call on the Department of Justice to protect citizens.

Or is our public debate to be run by the bORG—resistance is futile.

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