Diebold Voting Case Tests DMCA

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Can Diebold Systems use copyright law to pressure Netizens into removing links to online discussion archives stolen from the company in March? That question is before a federal judge.

The stolen archives contain conversations from online bulletin boards in which Diebold employees discuss problems with the company's electronic voting systems.

The ruling will test the limits of the controversial Digital Millennium Copyright Act (DMCA), says one legal expert. Diebold is invoking the copyright law in the cease and desist letters it has sent to universities and ISPs that linked to copies of the internal documents.

Colleges Discuss

At the center of the case are the Online Policy Group (OPG), a nonprofit ISP, and two students from Swarthmore College in Swarthmore, Pennsylvania. They argue that Diebold is abusing copyright law in an attempt to silence public debate about flaws in the voting systems. Their defense is being presented by the Electronic Frontier Foundation (EFF), representing both parties along with the Center for Internet and Society Cyberlaw Clinic at Stanford Law School.

The EFF and the Cyberlaw Clinic are requesting a court order to stop Diebold from issuing what they call "specious legal threats" against the ISPs of individuals who are linking to or publishing copies of the Diebold documents, says Will Doherty, EFF spokesperson.

Diebold did not respond to requests for comment.

The dispute between Diebold and various electronic-voting activists arose in March after a computer hacker compromised a Web server operated by Diebold. The intruder apparently made off with thousands of internal messages posted to Diebold online discussion boards concerning issues with the company's election equipment. The documents were leaked to the press in August.

A Swarthmore College group named Why War? began hosting copies of the documents on its Web site in September and convinced students at 50 other colleges and universities to do the same.

Diebold Objects

That prompted Diebold last week to try to stamp out online copies of the internal documents. The company sent cease and desist letters to a handful of U.S. colleges and universities, including Swarthmore, the Massachusetts Institute of Technology, and Harvard University, warning them they were hosting material that infringes on Diebold's copyrights.

The case has important implications for the future of the DMCA, and for its opponents' use of so-called fair use claims to publish copyrighted material, according to John Palfrey, executive director of the Berkman Center for Internet & Society at Harvard Law School.

While Diebold can clearly claim that the stolen material is its copyrighted property, fair use laws give individuals the right to infringe on those rights under certain circumstances, Palfrey says.

Typically, judges impose a four-part test for fair use claims, Palfrey says. They weigh such issues as the nature of the copyrighted work, the purpose and character of the fair use, the quantity of copyrighted material being infringed on, and its potential market value, he says.

On at least two of the four issues, the electronic-voting activists have a strong case, Palfrey suggests. Unlike digitally copied songs, a frequent subject of DMCA claims, the Diebold documents are not a form of creative expression, but a subject of intense political debate. Also, Diebold could not reasonably be expected to sell and make a profit off the documents and newsgroup posts, Palfrey says.

DMCA's Role Questioned

The DMCA has been invoked to stop illegal file swapping on the Internet, but in this case, Diebold is trying to use the law to quash public discussion, Palfrey says. The documents themselves bolster the discussion of problems with Diebold's products and the effect those might have on elections, Palfrey adds.

"You've got a political speech in an academic setting--nobody is trying to make any money off this. If fair use isn't upheld here, I'm not sure if the doctrine exists anymore," he says.

Nevertheless, the electronic-voting activists are not guaranteed a win, he adds. "The DMCA issues do muddy the water," Palfrey says. "I don't think this is a slam dunk on either side."

A loss could signal a continued expansion of copyright claims to cover a wide range of actions not directly related to copyright disputes, according to Palfrey.

"This is a very interesting litmus case on whether the DMCA will expand its reach forever or whether the judge will put his foot down and say there is fair use here and the DMCA is for other purposes," Palfrey says.

Regardless of the outcome in court, the EFF and others intend to pursue injunctions against Diebold to stop the cease and desist letters, the EFF's Doherty says.

"We want to make sure that OPG clients and students have the ability to post Diebold documents without fear of copyright infringement charges being brought against them," he says.

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