December 1, 2003 5:12 PM PST

Diebold retreats; lawmaker demands inquiry

Diebold is facing threats on two fronts as free-speech advocates pursue monetary damages against it and a presidential candidate urges a congressional inquiry into the company.

Diebold, which makes touch-screen voting machines in use around the world, on Monday reiterated its withdrawal of copyright takedown notices directed at numerous Internet service providers with subscribers who posted copies of its internal e-mail correspondence--and in some cases links to those copies.

Those takedown notices, issued under a provision of the Digital Millennium Copyright Act (DMCA), earned Diebold a lawsuit by an ISP with a client who linked to the documents and by two Swarthmore students whose school--acting as their ISP--had removed copies under takedown threat.

The DMCA takedown provision is designed to let copyright holders warn ISPs of copyright violations and ask that they be taken down before filing suit against them. Free-speech advocates argued that Diebold's notices had less to do with copyright protection than with damage control.

The internal Diebold e-mail correspondence in question criticized the company's software, security, certification and sales practices.

Diebold indicated in a Nov. 24 filing with the U.S. District Court in San Jose, Calif., that it would retract the DMCA notices and would not sue those who posted the e-mail correspondence or their ISPs. On Monday, the company restated that promise in the courtroom.

But lawyers who represent the Online Policy Group, an ISP whose client Indymedia had linked to the Diebold e-mails without posting them, indicated that they had not finished pressing their case against Diebold.

Instead, they pledged to seek a court order spelling out that publishing or linking to the Diebold e-mails doesn't amount to copyright infringement, as well as monetary damages under the DMCA on grounds of misrepresentation.

"It's a tremendous victory for free speech, for the Internet as a communications forum, and it's reaffirming the public side of the balance that copyright is supposed to embody," Wendy Seltzer, an attorney with the Electronic Frontier Foundation (EFF), said in an interview after Monday's hearing.

Seltzer, who represented the Swarthmore students, said the plaintiffs would seek monetary damages to dissuade companies from using DMCA takedown notices lightly.

"We've been saying from the beginning that Diebold shouldn't be able to use copyright law to stop discussion of technologies that are at the heart of our democracy, and Diebold has finally acknowledged that by dropping its threats of suit," Seltzer said. "And we plan to drive that point home to Diebold and anyone else who might be tempted to misuse copyright similarly."

Diebold did not return calls seeking comment.

Diebold's retreat in the courtroom comes as U.S. congressional representative Dennis Kucinich, who is seeking the Democratic Party's presidential nomination, jumped onto the anti-Diebold bandwagon by providing links to the Diebold e-mail correspondence from his House of Representatives Web site.

The Web site, launched Nov. 20, criticizes Diebold for both its product and its conduct in pursuing the Swarthmore students.

"Diebold has been using coercive legal claims to intimidate Internet service providers and even universities to shut down Web sites with links to its memos and remove the memo content," the site reads. "By abusing the Digital Millennium Copyright Act, Diebold has intimidated numerous Internet service providers to comply with its requests...Congressman Kucinich is working to address these problems by providing some of Diebold's internal memos on this site to increase public access..."

Kucinich also asked the U.S. House Judiciary Committee to investigate Diebold's DMCA takedown notices.

"Diebold's actions are representative of a growing body of abuses through which large and powerful parties unfairly intimidate ISPs to remove information those parties do not like," Kucinich wrote in a letter dated Nov. 21. "Powerful parties should not be permitted to misuse copyright as a tool for limiting bad press and barring access to legitimate consumer information."

The court hearing the students' and ISP's case against Diebold sent the case for mediation, scheduled hearings for motions in January, and scheduled a final hearing for Feb. 9.

 

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