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This looks like a form-letter DMCA takedown thing (good tip-off: referring to Cory Doctorow as "one of your users") so while Boing Boing isn't wrong to refuse to honor it, making a galactic big deal out of the shock-and-awe caliber of their legal response has a weird feeling to it, sort of the same as Eric Raymond's "I'm your worst nightmare" response to a Microsoft recruiter form-email.

> This looks like a form-letter DMCA takedown thing

No, it doesn't. I mean, yes, it clearly is crammed to fit into a DMCA takedown template, but it's making a novel argument about the underlying infringement justifying the takedown being not direct or vicarious infringement of copyright under any usual theory by infringement by multiple-step-indirect sharing information about alleged circumvention technology (under a novel theory of what qualified as anti-circumvention technology) and providing vague inspiration for theft (which wouldn't be relevant to a DMCA takedown even if it was true and illegal to do; as the EFF notes, the basis of the charge here cited by Bird is false and, even if it wasn't, inspiring or even outright encouraging illegal conduct is Constitutionally protected outside of narrow circumstances that don't even arguably apply here.)

> so while Boing Boing isn't wrong to refuse to honor it, making a galactic big deal out of the shock-and-awe caliber of their legal response has a weird feeling to it

It's a technique to get attention for (1) the novel and legally indefensible way Bird is trying to suppress information they don't like, and (2) the fact that others who are targetted should be aware that it is indefensible so that similar intimidation directed at others will not succeed.

How many examples of pro-forma DMCA takedown notices based on anti-circumvention claims would I have to provide for you to concede that this, too, is a pro-forma DMCA claim?

Form letter or not, this is a big company throwing its weight around with spurious legal threats. They can go fuck themselves and they should be told as much, loud and clear and in full view of the public.

This sort of thing is toxic and destructive to a free society.

Nah. Bird is a high profile startup with lawyers who know exactly what kind of BS they're peddling, and have likely successfully intimidated smaller blogs in the past with those same tactics.

Boing Boing + EFF are 100% right to make this interaction very visible, so others can learn 1) how slimy Bird is, and 2) how to respond to it if they find themselves in a similar position but do not have the means to get a proper lawyer/organization like the EFF on their side in a timely manner.

The ESR thing is an internet tough guy interacting with a tech recruiter trying to fill his quota, a much different situation.

I think all I'm saying is that they probably could have done this without EFF's public help, since, again, it's just a bogus DMCA takedown notice.

For however "high-profile" they are and however competent their lawyers are, this is a form letter, sent by someone who doesn't even know what Boing Boing is.

Right, but I think the point of the article is to admonish Bird for sending bogus DMCA take down notices. The EFF might be overkill, but it makes for a good story and generates more interest in the real story, which is that Bird is sending bogus takedown notices.

Your parent comment mentioned "one of your users" which I can only take as disingenuous since the full second sentence of Bird's letter to the mutants begins "Specifically, one of your users, Cory Doctorow, is promoting ...".

While perhaps some rando HN commenter can profess to not know what an "ESR" is (above, and sure ok fine, insert xkcd here), it doesn't seem likely that Bird doesn't know what a Boing Boing / Doctorow is. But even if they stamped out a boilerplate takedown with Linda Kwak's attestation that she has ".. a good faith belief, and do[es] solemnly and sincerely declare .." then it's on her, that's the rules of the DMCA takedown game, don't hate the players.

It seems far more likely that Bird knows full well what they were getting into here.

If you are reading this I urge you to go to eff.org and smash that donate button.

I wasn't familiar with the story of Microsoft and Eric Raymond, but I just went and read it. Man, that was very difficult to get through.

For others who haven't read it: http://esr.ibiblio.org/?p=208

Yes, that was difficult indeed. But not, I think, for the reasons you mean:

FURTHER UPDATE: I had my serious, constructive converstation with Microsoft last year, when a midlevel exec named Steven Walli took me out to dinner at OSCON 2004 and asked, in so many words, “How can we not be evil?” And I told him — open up your file formats (including Word and multimedia), support open technical standards instead of sabotaging them, license your patents under royalty-free, paperwork-free terms.

I believe Steve Walli went back to his bosses and told them that truth. He is no longer with Microsoft, and what little he’ll say about it hints that they canned him for trying to change their culture.

Stephen Walli actually is back with Microsoft these days :-)

It was a rather different time. Personally I wouldn't have been as rude or have named names but it wasn't unreasonable to have a bit of fun at Microsoft's expense. This was Microsoft's "Linux is a cancer" period when they even had a senior exec whose charter was basically going after Linux (among other things).

For someone who wasn't around for all of that fun, thank you for helping add a little context to his words.

I should clarify that I totally understand his position against Microsoft, and agree with his points that you quoted.

As for whether or not that redeems him for acting like a badass to a run-of-the-mill recruiter, the jury is still out on that one.

Yes, I see your point. I sure felt his email was very unprofessional, but I don't think that at the time he was acting in a professional capacity. For a personal email I felt it was more acceptable and he didn't really have a go at the recruiter himself, not directly so.

Whatever happened afterwards, what happened before was that a random recruiter sent a random person on the Internet a form email.

It was a different time back then, hardware vendors had to sign exclusivity agreements, they were in general big bullies back in the day.

ESR paints himself as a big bully here too. If that is how he interacts with other people, then it helps me to understand why he dropped out of school and never really had a traditional job. (Note: I had to find that info on Wikipedia because I have never heard of this guy; ironic considering he touted starting the open-source movement and likened himself to Richard Stallman and Linus Torvalds).

I am very very thankful that our industry has evolved beyond this type of character.

"""I indicated to him that I thought somebody was probably having a little joke at his expense, and promised him an email reply. Here is my reply in its entirety:


UPDATE: For those of you who missed the subtlety (which was a surprising lot of you) I was quite polite to this guy on the phone. """

It seems to me that in the phone conversation, ESR made it pretty clear that he was not seriously considering it, and that he was going to reply in a strange manner.

I think he has a weird sense of humor, for sure, but I don't think he was particularly bullying that particular recruiter -- he was putting on a show of bullying Microsoft, because that was both his thing (as an early Open Source proponent) and fashionable at the time.

Yeah when I was typing my reply I forgot that he had a prior conversation over the phone. Still, the ego comes off a little too strong for my taste. I'm curious about how he feels today with Microsoft starting to embrace the open source community more.

He was kinda-sorta relevant in the 90s? I think? I like his Unix programming book.

Currently, his hobby appears to be posting wingnut craziness on his website.


The Art of Unix Programming is a great read.

Just make sure you don't read his blog.

The hardest part for me is that sometimes, just sometimes, his blog has some great little nuggets of insight and usefulness, but the signal to man-with-opinions-and-noone-said-no is just ... too low. :(

I think we haven't evolved past this. Torvalds seems to be exactly this kind of character.

Why are you judging?

I am kinda glad they do make a big deal out of it. Hopefully it will give Bird pause before sending out any more of these letters to other journalists who may write on the subject.

When corporate lawyers go out of their way to look like morons, why interfere?

It needs to hurt when someone tries to pull something like this. With no public feedback loop in place, these types of people end up running things.

This seems different because Bird was actually making a legal threat and knew what they were doing. That's why the EFF stepped up.

What ESR did was play with a clueless HR person.

On the other hand, there's value for those in the position to do so doing the shock-and-awe thing now and then. Pour encourager les autres in its proper ironical sense.

What’s weird is that we’ve come to a point where form-letter legal threat nonsense is common and we’re all expected to just deal with it. This sort of thing deserves to be exposed and the perpetrator publicly shamed. Your example of ESR is totally different as the recruiter hadn’t done anything wrong.

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