- 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.
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- 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.
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- 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.
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- 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.
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- 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.
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- 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.
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- "We've simply chosen not to pursue copyright infringement
in this matter," spokesman David Bear told Wired News.
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- But the California district court judge ruled otherwise.
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- 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.
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- 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.
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- "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."
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- 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.
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- 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.
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- "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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