[DMCA-Activists] Swarthmore Activists Triumph vs. Diebold

[Seth Johnson]

> http://www.wired.com/news/evote/0,2645,65173,00.html?tw=wn_tophead_2


Diebold Loses Key Copyright Case  


By Kim Zetter
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. 

Today's the Day. 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."


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