Diebold Loses Key Copyright Case By Kim Zetter Story location: http://www.wired.com/news/evote/0,2645,65173,00.html
05:03 PM Sep. 30, 2004 PT 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 of story -- You are a subscribed member of the infowarrior list. Visit www.infowarrior.org for list information or to unsubscribe. This message may be redistributed freely in its entirety. Any and all copyrights appearing in list messages are maintained by their respective owners.
