Diebold voting documents case tests DMCA

Can Diebold Systems Inc. use copyright claims to pressure Internet users into removing links to online discussions archives stolen from the company in March? That is the question before a federal judge, whose answer is expected Tuesday.

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), which Diebold is using to support cease and desist letters it sent to universities and Internet service providers (ISPs) that provided links to copies of the internal documents, according to one legal expert.

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 are arguing that Diebold is abusing copyright law in an attempt to silence public debate about flaws in the systems that are used to count votes, according the San Francisco-based Electronic Frontier Foundation (EFF), which is representing the two parties in the case along with the Center for Internet and Society Cyberlaw Clinic at Stanford Law School in Stanford, California.

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

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 and 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.

That prompted Diebold last week to try to stamp out online copies of the internal documents. The North Canton, Ohio, 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, both in Cambridge, warning them that they were hosting material that infringes on Diebold's copyrights.

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

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