[free-sklyarov] Re: URGENT: factioning...

[Jay Sulzberger]

On Sat, 21 Jul 2001, Branden Robinson wrote:

> On Sat, Jul 21, 2001 at 01:37:34AM -0400, Jay Sulzberger wrote:
> > Please forgive the directness of my statements.
> >
> > This is a simple tactical error.  So simple and so well understood by so
> > many, that I ask:
> >
> > Why does the EFF persist in the error?
>
> Probably because until and unless Dmitry agrees to let EFF (or its
> agents) represent him legally, EFF has no special standing in this
> matter.  EFF needs to present itself as being in a position to offer
> something. Asserting some kind of degree of control -- or at least
> influence -- over the protests, which Adobe doesn't want to see, is
> probably the only card EFF has to play at this point.
>
> I don't disagree necessarily with the EFF playing it this way --
> having half a leg to stand on is better than none -- but in my letter
> to Mr. McCandlish I was trying to convey my opinion as a paid member
> of EFF that they should be as aggressive as possible in these
> negotiations, since EFF's position can only grow stronger in the
> future if they *are* retained by Mr. Sklyarov.
>
> Having won an agreement to sit down at the bargaining table, EFF has
> nothing to lose, so they might as well try to nail Adobe's balls to
> the wall.
>
> As Dmitry is as yet unrepresented (as far as I have heard), to have
> someone at the conference table this early in the going is a good
> thing.
>
> Consider the following scenarios:
> 1) Adobe calls of the negotiations because there are protestors outside
>    + EFF can rightfully howl and bitch about this, and very effectively
>      milk it in the press.  You don't have to understand the DMCA to
>      understand the freedom of the people peacably to assemble on public
>      property outside the Adobe offices, and if Adobe bails because of that
>      they're going to look very bad ("We will brook no criticism
>      whatsoever").
> 2) Adobe meets with EFF, smiles, nods, and doesn't do a damn thing.
>    + EFF can milk this in the press too.  The members of the mailing list
>      can holler to all available news forums about Adobe's cynical attempt to
>      manipulate the protestors, and if EFF does end up in meetings with
>      Adobe again -- which will only happen when they are in a positon of
>      greater strength than now, they can use Adobe's previous negotiations in
>      bad faith as a weapon against them.
> 3) Adobe makes some token gesture which doesn't actually do anything to
>    benefit Dmitry.
>    + The most likely scenario and the most difficult to defend against.
>      But that's all right, inevitably we're going to have to protest the
>      federal government to get Dmity freed.  If the protests go forward
>      anyway, Adobe still gets their black eye and other U.S. companies get
>      a message.
> 4) Adobe withdraws its complaint and calls for Dmitry's release and vows
>    non-cooperation with the FBI, making the case more difficult to
>    prosecute (remember, discovery hasn't taken place yet, and Adobe has the
>    resources to resist with some effectiveness, and the DoJ has
>    lower-hanging fruit to pick).
>    + The most unlikely scenario, and as much of a victory as could possibly
>      be expected from Adbobe, aside from a denunciation of the DMCA itself,
>      so unlikely that I really don't see any point in speculating on it.
>
> --
> G. Branden Robinson                |      "To be is to do"   -- Plato

We mostly agree on the shape of the game tree.  I think the probability of
branch 4 is not tiny.

oo--JS.