[PLUG] OT:Diebold Loses Key Copyright Case against swarthmore students & ISP

["M.Simons" <msimons@slackware.com>]

http://www.wired.com/news/evote/0,2645,65173,00.html

Wired News

September 30, 2004

Diebold Loses Key Copyright Case

By Kim Zetter

Students who sued Diebold Election Systems won their case
against the voting machine maker on Thursday after a judge
ruled that the company had misused the Digital Millennium
Copyright Act and ordered the company to pay damages and
fees. Lawyers for the students call the move a victory for
free speech.

A judge for the California district court ruled that the
company knowingly misrepresented that the students had
infringed the company's copyright and ordered the company to
pay damages and fees to two students and a nonprofit
internet service provider, Online Policy Group.

Last October, students at Swarthmore College in Pennsylvania
posted copies and links to some 13,000 internal Diebold
company memos that an anonymous source had leaked to Wired
News. The memos suggested that the company was aware of
security flaws in its voting system when it sold the system
to states.

Diebold sent several cease-and-desist letters to the
students and threatened them with litigation, citing the
Digital Millennium Copyright Act, or DMCA. Online Policy
Group was also threatened after someone posted a link to the
memos on a website hosted by the ISP. Diebold said the memos
were stolen from a company server and that posting them or
even linking to them violated the copyright law.

The Electronic Frontier Foundation, which took on the case
for the Online Policy Group, argued that the memos were an
important part of the public debate on electronic voting
systems.

After a slew of bad publicity criticizing their strong-arm
tactics, Diebold backed down and withdrew its legal threats
in December, but a spokesman said at the time that no one
should interpret the move as implying that the DMCA did not
apply in the case.

"We've simply chosen not to pursue copyright infringement in
this matter," spokesman David Bear told Wired News.

But the California district court judge ruled otherwise.

Judge Jeremy Fogel wrote in his decision that "no reasonable
copyright holder could have believed that portions of the
e-mail archive discussing possible technical problems with
Diebold's voting machines were protected by copyright." The
judge ruled that Diebold "knowingly materially
misrepresented" that the students and ISP had infringed
Diebold's copyright.

Wendy Seltzer, staff attorney for the Electronic Frontier
Foundation, said she hopes the decision will encourage ISPs
to resist takedown demands from companies that use the DMCA
to bar the speech of their clients. Seltzer said she hoped
the decision would show colleges and ISPs that they
shouldn't cave because they think litigation will be too
expensive and useless.

"For people who are facing threats under the Safe Harbor
provision of the DMCA, this gives them another tool in the
arsenal to resist demands," Seltzer said. "If the ISP now
has the right to cover its fees and costs, the ISP can now
be more confident in standing up to its accusers."

Diebold will have to pay the students and the ISP their
attorney fees, court costs and various other damages, which
Seltzer said will probably be in the "low six figures."
Seltzer said the figure wasn't going to bankrupt Diebold but
she said that was never their goal.

The ruling makes Diebold the first company to be held liable
for violating section 512(f) of the Digital Millennium
Copyright Act, which makes it unlawful to use the DMCA
takedown threats when the copyright holder knows that
infringement hasn't occurred.

"We weren't out to get Diebold," Seltzer said. "We were out
to crack down on the misuse of copyright threats. It's a
matter of showing Diebold and companies that there is a cost
to making false threats and to show ISPs that they have a
remedy if they feel they are being unfairly threatened. It's
not free to threaten infringement when there's no good faith
claim for infringement."

-end-
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