Diebold voting documents case tests DMCA

November 5, 2003 —

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.

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

Typically, judges rely on a four part test to determine fair use claims, weighing such issues as the nature of the copyright work, the purpose and character of the fair use, the quantity of copyright material that is being infringed on and the potential market value of the material, he said.

On at least two of those four issues, the electronic-voting activists have a strong case: 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. In addition, Diebold could not reasonably be expected to sell and make a profit off the documents and newsgroup posts, Palfrey said.

As opposed to the well-established use of the DMCA to stop illegal file swapping on the Internet, Diebold is attempting to use the law to quash public discussion, raised by the documents, of problems with its products and the effect those might have on elections, Palfrey said.

"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 said.

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

A loss in court by the EFF 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 said.

Regardless of the outcome in court on Tuesday, the EFF and others intend to pursue injunctions against Diebold to stop the cease and desist letters, Doherty said.

"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 said."

IDG News Service