Diebold Voting Case Tests DMCA

[InfoSec News <isn () c4i org>]

http://www.pcworld.com/news/article/0,aid,113273,00.asp

Paul Roberts, 
IDG News Service
November 04, 2003

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.



-
ISN is currently hosted by Attrition.org

To unsubscribe email majordomo () attrition org with 'unsubscribe isn'
in the BODY of the mail.