The Reporter
Group's site has information on Internet court decisions
By Vernon L. Sandusky

LINK

Sunday, October 17, 2004 - If your blood starts to boil when you hear how entertainment industry giants use their deep pockets to stomp on your rights to freely use the Internet, you should get acquainted with the Electronic Freedom Foundation.

EFF Active Legal Cases

EFF describes itself as a "group of passionate people - lawyers, technologists, volunteers, and visionaries - working in the trenches, battling to protect your rights and the rights of web surfers everywhere. The dedicated people of EFF challenge legislation that threatens to put a price on what is invaluable; to control what must remain boundless."

You may remember that during the Diebold voting machine controversy in California, information surfaced in news accounts that private memos existed within Diebold that acknowledged that there were problems associated with the machines. Copies of these memos made their way into the hands of two college students, Nelson Pavlosky and Luke Smith, who posted them on the Internet using the Internet service provided by Swarthmore College.

The original posting did not attract much attention, but a hyperlink to the e-mail archive cited by an online newspaper, IndyMedia, was widely circulated. Diebold responded by sending cease and desist letters not only to the direct Internet Service Providers who provided IndyMedia and the college students their Internet access, but also to the upstream ISPs that forwarded those connections to the Internet backbone.

Diebold based their cease and desist letters on copyright provisions of the Digital Millenium law and wanted the ISPs to remove the offending material. The college students fought back and requested the courts to issue an injunction to prevent Diebold from threatening or bringing any lawsuit.

In their arguments before the court, the lawyers for Diebold claimed that the internal memos were copyrighted and contained nothing of "public interest."

However, the court found that the e-mails fell within the "fair-use" doctrine, which permits publications of items that have no obvious market value especially documents that provide information, which is in the public interest.

Since the documents describe how tabulations of elections could be made incorrectly, it is hard to imagine a more compelling public interest.

The court also found that Diebold knowingly misrepresented that the ISPs infringed on Diebold's copyright interests. Since the ISPs were not developers or manufacturers of voting machines, a reasonable person could not come to believe that they expected to profit in the voting machine business and therefore Diebold's claims of copyright infringement could not be upheld.

The entire text of the court decision can be found online at www.eff.org. Other interesting cases currently in the news at EFF look at the privacy of e-mail and the law, which prohibits anyone from decoding digital television to remove the copyright provisions.

The author writes about online subjects for Tech-Line. He can be reached at VernonLS@callnetworksolutions.com.
Online Policy Group v. Diebold, Inc.

Diebold, Inc., manufacturer of electronic voting machines, has been sending out many cease-and-desist letters to Internet Service Providers (ISPs), after internal documents indicating flaws in their systems were published on the Internet. The company cited copyright violations under the Digital Millennium Copyright Act (DMCA) and demanded that the documents be taken down.

Now EFF and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School are fighting back, seeking a court order on behalf of nonprofit ISP Online Policy Group (OPG) and two Swarthmore College students to prevent Diebold's abusive copyright claims from silencing public debate about voting, the very foundation of our democratic process.

"Diebold's blanket cease-and-desist notices are a blatant abuse of copyright law," said EFF Staff Attorney Wendy Seltzer. "Publication of the Diebold documents is clear fair use because of their direct relevance to the debate over the accuracy of electronic voting machines."

The documents include email messages written by Diebold employees describing security flaws in the systems, as well as email discussions about how to resolve, or in some cases, obfuscate those problems.

The DMCA contains a "safe harbor" provision as an incentive for ISPs to take down user-posted content when they receive cease-and-desist letters such as the ones sent by Diebold. By removing the content, or forcing the user to do so, an ISP can take itself out of the middle of any copyright claim. As a result, few ISPs have tested whether they would face liability for such user activity in a court of law.

Lawsuit documents:
Motion for Summary Judgment

Order Granting In Part And Denying In Part Crossmotions For Summary Judgment [PDF 112k] September 30, 2004

Transcript from Summary Judgment hearing (TXT - February 9, 2004)

Plaintiffs' Opposition to Defendents' Motion for Summary Judgment (PDF 82K - January 30, 2004)

Defendents' Opposition to Plaintiffs' Motion for Summary Judgment (PDF 163k - January 30, 2004)

Plaintiffs' Motion for Summary Judgment (PDF 3.7M - January 12, 2004)

Declaration of Cohn in Support of Plaintiffs (PDF 748k - January 12, 2004)
Declaration of Pavlosky in Support of Plaintiffs (PDF 563k - January 12, 2004)
Declaration of Weekly in Support of Plaintiffs (PDF 956k - January 12, 2004)
Declaration of Laroia in Support of Plaintiffs (PDF 1M - January 12, 2004)

Defendants' Motion for Summary Judgment (PDF 191k - January 12, 2004)

Defendants' Notice of Motion for Summary Judgment (PDF 61k - January 12, 2004)
Declaration of Sand in Support of Defendants (PDF 1.6M - January 12, 2004)
Defendants' Proposed Order (PDF 61k - January 12, 2004)

Diebold Withdrawal Letter to Will Doherty of OPG (December 3, 2003)

Diebold's Answer to Complaint, (December 5, 2003)

Scheduling Order Detailing Diebold's Withdrawal of Threats (PDF 34k - December 1, 2003)

Diebold Response to Cohn Letter (PDF 391k - November 24, 2003)

Transcript of Preliminary Injunction (November 17, 2003)

Letter of Cindy Cohn, attaching Supplemental Declaration of Benny Ng regarding Diebold's "second notice" to Hurricane Electric (PDFs, November 17, 2003)

Plaintiffs' Reply Brief on Preliminary Injunction (PDF 175k - November 14, 2003)
Declaration of Vincent V. Carissimi, Swarthmore College Counsel (PDF 154k)
Proposed Preliminary Injunction Order (PDF 73k)
Second Supplemental Declaration of Luke Thomas Smith (PDF 412k)
Amendment to Application for Preliminary Injunction (PDF 12k)
Diebold's Opposition to Motion for Preliminary Injunction (PDF 2.2MB - November 12, 2003)
Declaration of Nancy Reeves (PDF 154k - November 12, 2003)
Plaintiffs' Supplemental Brief Supporting Preliminary Injunction (PDF 908k - November 7, 2003)
Supplemental Declaration of David E. Weekly (PDF 328k - November 7, 2003)
Supplemental Declaration of Luke Thomas Smith (PDF 572 - November 7, 2003)
Judge Fogel's order, setting expedited hearing schedule for Preliminary Injunction (November 4, 2003)

Complaint (November 4, 2003)
First Amended Complaint, (November 14, 2003)
Application for Temporary Restraining Order (November 4, 2003)
Proposed Temporary Restraining Order (November 4, 2003)
Declaration of David E. Weekly, OPG Board Member
Declaration of Luke Thomas Smith, Swarthmore Student
Declaration of Nelson Chu Pavlosky, Swarthmore Student
Declaration of Benny Ng, Hurricane Electric
Declaration of Wendy Seltzer, EFF Staff Attorney
Diebold's opposition to TRO (November 4, 2003)

Diebold cease-and-desist letter to OPG
EFF's response to Diebold on behalf of OPG

Media releases:

Electronic Frontier Foundation and Stanford Law Clinic Sue Electronic Voting Company

ISP Rejects Diebold Copyright Claims Against News Website

Media coverage:

File Sharing Pits Copyright Against Free Speech (Requires free registration) [John Schwartz, New York Times]

Black Box Voting Blues [Steven Levy, Newsweek]

Diebold Issues Threat to Publishers of Leaked Memos [AP]

E-Vote Protest Gains Momentum [Wired]

Students Fight E-Vote Firm [Wired]

Commentary:

Latest DMCA Takedown Victim: The Election Process [Ed Foster, Gripelog]

Something Truly Terrifying [Tom Tomorrow, This Modern World]

(Electronic) Civil Disobedience at Swarthmore [Ernest Miller, The Importance Of...]
Swarthmore Crackdown on Protesting Students Reaches New Low [Ernest Miller, The Importance Of...]

Related documents/resources:

Congressman Dennis J. Kucinich endorses open design processes for electronic voting machines, and condemns Diebold's coercive copyright claims.

Analysis of an Electronic Voting System

Security researchers discover huge flaws in e-voting system

Chilling Effects on the DMCA's safe harbor provisions

Copyright
The "Copyright" topic area includes discussions of traditional copyright, fair use, reverse engineering, and the new additions to copyright of the Digital Millennium Copyright Act (DMCA). Under DMCA, we discuss the ISP safe harbor and its conditions (notice and takedown), and the anticircumvention provisions of section 1201.

Related sub-topics:

Copyright and Fair Use

Derivative Works

Reverse Engineering

Piracy or Copyright Infringement

Digital Millennium Copyright Act:

Anticircumvention (DMCA)

DMCA Safe Harbor Provisions


In the online world, the potentially infringing activities of individuals are stored and transmitted through the networks of third parties. Web site hosting services, Internet service providers, and search engines that link to materials on the Web are just some of the service providers that transmit materials created by others. Section 512 of the Digital Millennium Copyright Act (DMCA) protects online service providers (OSPs) from liability for information posted or transmitted by subscribers if they quickly remove or disable access to material identified in a copyright holder's complaint.

In order to qualify for safe harbor protection, an OSP must:

have no knowledge of, or financial benefit from, the infringing activity

provide proper notification of its policies to its subscribers

set up an agent to deal with copyright complaints

While the safe harbor provisions provide a way for individuals to object to the removal of their materials once taken down, they do not require service providers to notify those individuals before their allegedly infringing materials are removed. If the material on your site does not infringe the intellectual property rights of a copyright owner and it has been improperly removed from the Web, you can file a counter-notice with the service provider, who must transmit it to the person who made the complaint. If the copyright owner does not notify the service provider within 14 business days that it has filed a claim against you in court, your materials can be restored to the Internet.

FAQs about DMCA Safe Harbor Provisions

Unintended Consequences: Five Years under the DMCA

Intellectual Property Online: Patent, Trademark, Copyright