If your site links to stolen documents hosted on someone else's system, should your entire ISP and its broadband service backbone face legal threats from the documents' creator?
That's the question put to San Jose federal court judge Jeremy Fogel on Monday by the Electronic Frontier Foundation on behalf of the Online Policy Group, a nonprofit ISP. Fogel heard arguments for over an hour on the ISP's request for an injunction to bar Diebold Election Systems from sending "cease and desist" letters to scores of universities, ISPs, nonprofit groups, and individuals who linked to online archives allegedly copied illegally from Diebold's internal servers last March.
Fogel's ruling, expected within the next few weeks, will determine whether Web site operators and ISPs should feel free to host or link to copies of internal Diebold discussions about ongoing security issues and software bugs within the company's electronic voting machines. Diebold insists the controversial Digital Millennium Copyright Act should be used to shield all 13,000 pages of material from public scrutiny. Online activists argue that the archives already have revealed information key to the public debate over whether computers or paper ballots should be used in the nation's polling booths.
While the DMCA was written to stop illegal file swapping on the Internet, EFF attorney Cindy Cohn says Diebold is trying to use it to end public criticism of the company's electronic voting systems.
"The Pentagon Papers and numerous other cases have set a precedent for the public's right to see stolen documents" that address issues of broad public concern, Cohn argued to Fogel.
But Diebold attorney Robert Mittelstaedt countered that the documents outline so much of the source code, as well as the research and development, that has gone into Diebold's election systems that competitors could use the documents to outbid Diebold on government contracts.
Fogel's questions during the hearing hint he is leaning toward allowing so-called "fair use" dissemination of at least part of the archives.
"Is there any way to go through ... and decide what's fair use and what is proprietary?" the judge asked Mittelstaedt. "Can we distinguish the material that addresses the public question about the systems' reliability?"
Mittelstaedt acknowledged that Diebold informally has tried to analyze the material in that way, but decided that even a partial release would threaten Diebold's competitive advantage.
The legal case has been brewing since August, when someone released the 13,000 pages of Diebold documents to electronic-voting activists. They in turn published links and stories about it on Web logs and personal sites. The documents have been further distributed around the Internet, making it impossible to know how many copies exist.
The Online Policy Group, chief plaintiff in the case against Diebold, hosts colocated Web servers free of charge for 120 nonprofit organizations, requiring only that none of the servers be used for commercial gain. The ISP in turn leases space in a Fremont, California server farm operated by Hurricane Electronic, which also received a cease-and-desist notice from Diebold. Diebold threatened the Online Policy Group with legal action after one of the ISP's 120 clients, the San Francisco Independent Media Center, linked to the Diebold documents.
David Weekly, founder of the California Community Colocation Project to which the Online Policy Group belongs, says he is pleased Fogel asked so many questions, indicating his understanding of both sides of the lawsuit.
"He clearly recognizes that Diebold's claim of secondary, tertiary, and quaternary copyright infringements is specious," Weekly says. "The collateral damage to free speech goes higher and higher the more broadly Diebold tries to quash these documents."