[Commons-Law] [Fwd: [foil] Diebold ("touch screen voting machines") Loses Key Copyright Case ]

[Vivek Narayanan]

Sorry for those who already saw this article.  I'm afraid I don't have 
anything very intelligent to say about this, but it sounds like good news!

V.

<http://www.wired.com/>Wired
05:03 PM Sep. 30, 2004 PT


Diebold Loses Key Copyright Case
<http://www.wired.com/news/evote/0,2645,65173,00.html>http://www.wired.com/news/evote/0,2645,65173,00.html 




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."