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The EFF is fighting for the right thing here, but it loses credibility when it mischaracterizes legal procedure to make things look extra-scary.

They've been doing that a lot in recent years, and the more they do it the lower my support gets. They're implicitly lying to their strongest supporters, and there are enough attorneys on the staff that I wonder why this is considered an acceptable way to communicate with the public. Arguments like this would rightly be derided if the other side advanced them in a legal filing, why are they being foisted on the public?

Occasionally I hear people stalking 'the court of public opinion' having different rules from the law courts. Fuck that bullshit, if you'll excuse my language. The EFF is ain a great position to educate people on how the law actually functions and why cases are so intricate and drag on for so long, but they choose not to. It disturbs me.

I noticed this with another EFF post earlier this year. I'm sure this sort of dire tone plays well on Reddit, but I hope it's not becoming a strategy.

> I'm sure this sort of dire tone plays well on Reddit

Same here too, Hacker News is not invulnerable to the same tactic. To think otherwise is foolish.

Remember when SOPA was "breaking the Internet"? There's nothing new about the EFF's sky-is-falling rhetoric. It's just activists being activists.

I'm not sure that's exactly an overblown characterization of SOPA. If you thought DMCA abuse was bad, SOPA would have ramped it up to insane levels.

Likewise with this statement:

"CloudFlare makes websites faster and more secure, but can’t suspend a site’s domain name or render it unreachable."

Obviously it can render a site unreachable (at least as long as the site is using cloudflare DNS servers) which is the point.

Fair enough, which may be an overstatement... it cannot easily limit access to specific content...

   http://foo.com/some/content //blocked
   http://foo.com/download/content?id=baz //blocked

For the first url, without a querystring, adding one probably shouldn't affect the block.. in the second should adding more query parameters be not blocked? what about changing the ID, should all content be blocked now?

It's a huge technical challenge to block this content in compliance with the law as it stands... let alone to expect companies to proactively block potentially infringing content... even Google doesn't do very well at this and they have far more resources than most.

> Courts usually require parties making a motion for some relief to submit a proposed order..

I don't follow the complaint here. What the article said was correct then, right? And if the EFF feels it's bad that media companies are drafting the orders (setting aside whether they're right nor not), why not mention it?

A motion for injunction asks the court to make some party do or not do something. Injunction orders have lots of routine but fact-specific details. Anyone filing a motion for injunction will file a proposed order, to save the court the hassle of pulling those details from the motion and typing them into an order, and also to eliminate any "loss in translation" from that process.

Lawyers know that submitting a proposed order is routine (not just for injunctions, but almost any motion), and that the judge will strike or rewrite anything he or she does not agree with. But when you phrase it the way the article does--that the media companies get to write the order (as if everyone else doesn't)--that falsely implies special treatment and influence.

Except that not all judges strike things. A lot just rubber stamp whatever the Big Co rights holders has submitted.

Then that should be the argument, not the drafting of the order.

Citation needed.

To me "initially drafted" implied exactly what you're saying. Feels like you're nitpicking.

It's like a pull request.

The court doesn't want you to say "this code is dumb, it should sort numbers better."

The court does want you to say "here is how the code should sort numbers: <diff.txt>" And the opposing side can critique your diff.txt.

If you cannot arrange your thoughts sufficiently to get into the second format, you do not belong in the courtroom yet.

Because the EFF is misleading readers about how the US legal system works. How is it bad that the media companies are drafting the orders? They are parties to the case. The other side is also drafting orders and then the court picks whichever one has the better legal argument.

Suppose you get in a dispute with someone. You got to court asking that the court order the other person to stop doing something, or to hand over the money they owe you, or do whatever it is you think they should do that made you sue them. The judge will tell your lawyer to draft the order that you (the client) would like the judge to sign. How do you think the defenedant will feel about this if you win the case? 'OMG it was so unfair, the order was actually written by fenomas' lawyer and all the judge did was rubber-stamp it, what has our justice system come to etc. etc. etc.'...unless the dispute goes int eh defendant's favor in which case you'll probably say the same thing about the defendant's lawyer writing the motion that the judge signed off on.

This is the normal operation of our adversarial legal system. the EFF should be using their position to educate people about that and then explaining where they disagree with the merits of the media companies' arguments, instead of pretending that there is some sort of procedural sleight-of-hand going on. After all, when the EFF goes to court the EFF's lawyers submit the motions that they would like the judges to sign, just like in any other dispute.

> instead of pretending that there is some sort of procedural sleight-of-hand going on.

except for the fact that there is sleight of and going on, the MAFFIA get ex parte rulings all the time, this is not "adversarial" this is the court system bending to the will of large corporations.

The MAFFIA believes it alone should be the sole arbitrator of who is allowed and not allowed to post content to the Internet, and the courts have been more than willing to cede this power to them with rubber stamp orders.

If there's sleight-of-hand going on elsewhere in the process, even more important not to imply it in the wrong place.

It's "MAFIAA". I mean, if you want to sound like Richard Stallman when you write about this stuff.

I'd say that's within the realm of classifying it as "secret" or at least underhanded. Unless I'm reading that wrong, it sure reads as "take first, tell second, then let them contest." Pretty crappy.

Most organizations trying to rally support use rhetoric. Take a look at the doublespeak in the average industry "patent pool" extortion organization, and how often they use words like "innovation" and "incentivize" and "protect". Refusing to resort to rhetoric while your opponents have no such qualms is a losing proposition.

I strongly disagree. bullshit sells better in the short term but eventually it poisons your audience. Being truthful and circumspect is a much better foundation for long-term credibility.

What evidence do you have for such a ridiculous claim?

Truth is certainly a hard requirement; rhetoric doesn't imply lying.

rhetoric doesn't imply lying.

But does it imply misleading?

I normally don't tend to favor dictionary definitions as a point in an argument, but in this case, I think it's the most relevant answer. Rhetoric is "using language effectively and persuasively". That doesn't in any way imply misleading, though rhetoric can be (and sadly is often) used to mislead. But rhetoric can also be (and should be) used to find the most effective argumentative tactic to promote a valid point.

When speaking to an audience receptive to logical argument, use the most effective possible logical argument and evidence. When speaking to an audience moved primarily by emotion (outrage, pity, righteousness, take your pick), use the most effective possible appeal to those emotions. When you can do both, do both. Find the argumentative tactic that works with your audience and use it.