In my perspective, it's less about the presentation, and more about the motivations involved.
If the EFF is motivated to reach out to the original DMCA recipient, then they could definitely present this avenue. That leads us to the next question, is the original DMCA recipient interested in pursuing a (now funded) defense? If not, are they interested in handing it off to someone else? Who? Would that person be an effective defendant?
Really, what we are doing here is speculating on one person's level of disinterest in pursuing the legal defense of their work.
If the EFF is motivated to reach out to the original DMCA recipient, then they could definitely present this avenue. That leads us to the next question, is the original DMCA recipient interested in pursuing a (now funded) defense? If not, are they interested in handing it off to someone else? Who? Would that person be an effective defendant?
Really, what we are doing here is speculating on one person's level of disinterest in pursuing the legal defense of their work.