ATTN: for-profit Tor operators

[Anthony DiPierro]

On 11/25/05, Mike Perry <mikepery at fscked.org> wrote:
> Thus spake Matt Ghali (matt at snark.net):
> 3. Sponsoring Tor is not possible when doing test cases
>
> This is the most likely scenario, IMHO. IANAL, but I would guess that
> sponsoring Tor opens up the EFF to greater legal liability when
> attempting to defend operators in test cases. After all, the decision
> to take up a DMCA test case was made about a month ago, right around
> the time funding supposedly ran out. For this reason I believe it is
> most likely that funding was terminated so that the EFF would be
> better able to help Tor operators. But I'm a chronic optimist.
>
Actually I would say if anything the opposite is true.  By being an
operator itself, the EFF has standing to be involved in the cases
themselves, rather than simply providing free legal support to someone
else.  Then again, I suppose the EFF could argue that it *was* an
operator, and that it wants to continue being an operator after the
legal issues are settled.

All that said, I'm not sure there is much threat by copyright law
(including the DMCA) in being a Tor operator.  About the only time I
could see it coming into play is if you're supporting a hidden service
which has copyright infringments on it.  Then, if you've registered as
an ISP under the DMCA, you might have to disable access to that hidden
service (assuming this is possible - I figure it must be possible to
at least disable it for whoever is doing the DNS resolution).  If
you're not registered as an ISP under the DMCA, well, then you don't
get the protections of the DMCA.  The CDA might still kick in, but
it'd probably be a good idea to register under the DMCA anyway.

The CDA might also be useful for protection under non-copyright laws
including libel.

> It is also possible that a test case would be extremely expensive, and
> given finite funding, it had to be either test case or development
> support, and the choice was consciously made for a test case.
>
> So before we go badmouthing the EFF, I would suggest giving them the
> benefit of the doubt. They do good work, and hopefully this decision
> was made on sound, uncoerced reasoning that the action was good for
> both EFF and Tor.
>
The EFF has done a lot of things that I consider to be a waste,
actually.  The Felton case, for example, was pretty obviously going to
be thrown out for a lack of standing.  That whole case was a big waste
of time and money (to quote the judge, "the defendants having said
we're not going to sue you, the plaintiffs decided apparently to
catalyze this action by bringing a suit themselves"), and it was
enough to turn me off from giving the EFF any financial support for a
while.  The way I saw it the EFF was creating strawman arguments
against the DMCA, and in some ways I think they've actually done more
harm than good, making people paranoid over interpretations of the
DMCA which simply haven't panned out in the courts.  It's been years
since that whole mess, though, and maybe it's time to give the EFF
another chance.  I agree that the DMCA is bad, but I think the ACLU
has made better challenges to it Constitutionally (of course, they've
been losing too, but I feel they have better arguments).

Anthony