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public about the problems associated with
Diebold's electronic voting machines. It is hard to imagine a subject the discussion of which could be more in the public interest. If Diebold's machines in fact do tabulate voters' preferences incorrectly, the very legitimacy of elections would be suspect. Moreover, Diebold has identified no specific commercial purpose or interest affected by publication of the email archive, and there is no evidence that such publication actually had or may have any effect on the putative market value, if any, of Diebold's allegedly copyrighted material. Even if it is true that portions of the email archive have commercial value, there is no evidence that Plaintiffs have attempted or intended to sell copies of the email archive for profit. Publishing or hyperlinking to the email archive did not prevent Diebold from making a profit from the content of the archive because there is no evidence that Diebold itself intended to or could profit from such content. At most, Plaintiffs' activity might have reduced Diebold's profits because it helped inform potential customers of problems with the machines. However, copyright law is not designed to prevent such an outcome. See, e.g.,
280:
the portions of the email archive discussing possible technical problems with
Diebold's voting machines were protected by copyright, and there is no genuine issue of fact that Diebold knew—and indeed that it specifically intended —that its letters to OPG and Swarthmore would result in prevention of publication of that content. The misrepresentations were material in that they resulted in removal of the content from websites and the initiation of the present lawsuit. The fact that Diebold never actually brought suit against any alleged infringer suggests strongly that Diebold sought to use the DMCA's safe harbor provisions—which were designed to protect ISPs, not copyright holders—as a sword to suppress publication of embarrassing content rather than as a shield to protect its intellectual property.
271:
no evidence that
Plaintiffs published or linked to the archive in order to profit. Finally, Plaintiffs' and IndyMedia's use was transformative: they used the email archive to support criticism that is in the public interest, not to develop electronic voting technology. Accordingly, there is no genuine issue of material fact that Diebold, through its use of the DMCA, sought to and did in fact suppress publication of content that is not subject to copyright protection.
39:
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he Court concludes as a matter of law that
Diebold knowingly materially misrepresented that Plaintiffs infringed Diebold's copyright interest, at least with respect to the portions of the email archive clearly subject to the fair use exception. No reasonable copyright holder could have believed that
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at 591-92. Rather, the goal of copyright law is to protect creative works in order to promote their creation. To the extent that
Diebold argues that publication of the entire email archive diminished the value of some of its proprietary software or systems information, it must be noted that there is
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The purpose, character, nature of the use, and the effect of the use upon the potential market for or value of the copyrighted work all indicate that at least part of the email archive is not protected by copyright law. The email archive was posted or hyperlinked to for the purpose of informing the
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Sometime in the spring of 2003 an unknown hacker broke into
Diebold computers and obtained a large portion of their email archives, which was posted to various web sites. In an effort to quash the dissemination of information about security flaws in its voting machines, Diebold had sent dozens of
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was posted to
Indybay. The link was not a direct link to the e-mail archive: upon reaching the linked page, the reader had to click another link to download the memos themselves. Diebold sent legal threats to OPG, asserting that the memos were copyrighted and that Indybay was committing tertiary
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provider. After
Swarthmore complied and removed the material, Pavlosky, Smith and the OPG sued Diebold, "asserting the company's accusation of infringement "was based on knowing material misrepresentation," an actionable claim under a provision of the DMCA (17 U.S.C. 512(f)) and, furthermore,
213:"interfered with contractual relations" between the students and their Internet service providers". Although Diebold withdrew their DMCA letters after a media backlash, the plaintiffs decided to pursue Diebold in court; before the trial, EFF's legal director
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DMCA takedown notices to various ISPs, all of which complied, except for OPG. Diebold sent takedown notices not only to sites actually storing the information, but also to those that merely linked to it. More specifically, Diebold sent DMCA notices to
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Steve
Westbrook; Shaun Slattery; D Nielle Nicole Devoss (2011). "What We Talk About When We Talk About Fair Use: Conversations on Writing Pedagogy, New Media, and Copyright Law". In Martine Courant Rife; Shaun Slattery; Danielle Nicole DeVoss (eds.).
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said that "We think it's important that the court make it clear that if you misuse the powers the DMCA has granted copyright holders, there are going to be serious consequences."
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Voting machine showdown. A leading maker of computer election equipment defends itself in court against charges that it overreached itself in trying to stifle critics.
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essentially "because there was no commercial harm and no diminishment of value of the works" in their republication. Additionally
Diebold was found to have
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infringement by linking to a link to the Diebold memos. When Indymedia and OPG refused to act, Diebold sent legal threats to OPG's upstream ISP,
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183:(DMCA) and leaving them liable for court costs and damages. This was the first time 512(f) had been enforced in court, and set a precedent.
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Miller, Joseph M. (2009). "Fair Use through the Lenz of Section 512(c) of the DMCA: A Preemptive Defense to a Premature Remedy".
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Judge Fogel noted that Diebold's filing contained contradictory elements, and on the matter of fair use determined that:
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The failure to consider fair use before sending a DMCA notice was also found to compromise its good faith nature in
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McIntyre, Stephen (2012). "Private Rights and Public Wrongs: Fair Use as a Remedy for Private Censorship".
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its copyright controls over the work, putting them in violation of section 512(f) of the
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is also used as a textbook illustration of four-factor analysis (of fair use) alongside
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144:) internal company e-mails and Diebold's contested copyright claims over them. The
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web page. Diebold also sent notices to the Online Policy Group, the ISP for an
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United States District Court for the Northern District of California cases
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He then concluded that "Diebold violated section 512(f)" of the DMCA:
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United States District Court for the Northern District of California
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ruled that the plaintiffs' publishing of the e-mails was clearly a
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Consequently, Diebold was ordered to pay $ 125,000 in damages.
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Software & Internet Law: Safe Harbors and Chilling Effects
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site linking to Pavlosky & Smith's web page, and also to
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2004), was a lawsuit involving an archive of Diebold's (now
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Copy(Write): Intellectual Property in the Writing Classroom
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Cyberlaw Intellectual Property in the Digital Millennium
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The Copyright Handbook: What Every Writer Needs to Know
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Sony Corp. of America v. Universal City Studios, Inc.
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Online Policy Group (OPG), Nelson Chu Pavlosky, and
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EFF's official page with all of the court documents
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68:and Diebold Election Systems, Incorporated
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669:Digital Millennium Copyright Act case law
664:Electronic Frontier Foundation litigation
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629:Online Policy Group official website
583:Online Policy Group v. Diebold, Inc.
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129:Online Policy Group v. Diebold, Inc.
32:Online Policy Group v. Diebold, Inc.
512:. ALM. April 28, 2022. p. 38.
399:. Oxford University Press. p.
486:'s website, Retrieved 25 Oct 2012.
369:Mother Jones - The Paperless Chase
220:The OPG is a free, donation-based
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480:Safe Harbors and Chilling Effects
156:legal support for the non-profit
181:Digital Millennium Copyright Act
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654:United States computer case law
391:Neil Weinstock Netanel (2008).
644:2004 in United States case law
146:Electronic Frontier Foundation
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290:Lenz v. Universal Music Corp.
167:United States District Judge
350:337 F. Supp. 2d 1195
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142:Premier Election Solutions
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593:2004) is available from:
533:Stephen Fishman (2008).
164:students, respectively.
150:Stanford Cyberlaw Clinic
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539:. Nolo. p. 368.
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66:Diebold, Incorporated
268:Acuff-Rose, 510 U.S.
395:Copyright's Paradox
649:Swarthmore College
464:By Farhad Manjoo,
327:Gonzaga Law Review
251:Hurricane Electric
206:Hurricane Electric
194:Swarthmore College
162:Swarthmore College
77:September 30, 2004
546:978-1-4133-0893-8
448:978-1-60235-262-9
410:978-0-19-988132-1
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587:F. Supp. 2d
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97:F. Supp. 2d
82:Docket nos.
638:Categories
313:References
215:Cindy Cohn
187:Background
104:U.S.P.Q.2d
591:N.D. Cal.
354:N.D. Cal.
238:Indymedia
202:IndyMedia
152:provided
138:N.D. Cal.
92:Citations
581:Text of
293:(2008).
222:web host
210:upstream
208:, OPG's
173:fair use
160:and the
154:pro bono
148:and the
674:Diebold
568:: 1697.
257:Verdict
244:) when
242:Indybay
224:run by
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