November 3, 2003 5:17 PM PST
Students buck DMCA threat
But in the months since the North Canton, Ohio-based company began trying to rid the Internet of those copyrighted files, it has arrived at a very unusual impasse. Far from vanishing, the files have appeared on more than 50 Web sites, run mostly by students who claim Diebold has a suspiciously cozy relationship with the Republican Party and that the e-mail conversations demonstrate its election software is flawed and should not be trusted.
On Tuesday, Diebold will find itself on the defensive in court as well. The Electronic Frontier Foundation and Stanford Law School's Center for Internet and Society are planning to file a lawsuit asking for a temporary restraining order that would effectively halt Diebold's campaign against the loosely organized network of mirror sites. A hearing could be held as early as Tuesday in federal district court in San Francisco.
EFF attorneys say the case is the first time that someone who has received a "notice and takedown" request--one of the many Diebold made, repeatedly invoking the Digital Millennium Copyright Act (DMCA)--has attempted such a pre-emptive strike before being sued.
"We're saying that the hosting of the documents is fair use" and therefore legal, said Wendy Seltzer, an EFF staff attorney. "They're very thinly protected by copyright in the first place and being posted as part of a political debate."
Diebold did not respond on Monday to a request for comment. Diebold Election Systems sells electronic voting systems used in states including California, Georgia, Ohio and Texas. Its parent company, Diebold Inc., is publicly traded and reported revenue of $1.9 billion in 2002.
As part of the same suit, Stanford's Jennifer Granick is representing two Swarthmore College students, Nelson Pavlosky and Luke Smith, who mirrored the Diebold documents and received a DMCA notification. EFF is representing the Online Policy Group, a free hosting service that had hyperlinks to the Diebold documents, but not to the documents themselves, on its server.
"Irregardless of the copyright status of the underlying documents, copyright law does not allow you to go after someone who merely links to the documents," Seltzer said.
Because the legal status of hyperlinking to copyrighted documents is unclear, the lawsuit is noteworthy for that reason as well. In a November 2001 case that pitted the major movie studios against 2600 magazine, the 2nd Circuit Court of Appeals ruled that linking to illegal content can be restricted "consistent with the limitations of the First Amendment." That ruling is not binding on California courts.
In an unusual move for a college, Swarthmore decided to back its students against the legal threats by Diebold. Its president, Alfred Bloom said in a statement: "The college is deeply proud of its students' resolve to act on behalf of an open and fair democracy."
The wealth of Diebold e-mail, which totals about 11MB when compressed, includes internal conversations that cast doubt on the company's ability to sell secure software. Some messages note that lists of bugs were "irrecoverably lost," while others complain that "I have never been at any other company that has been so miss (sic) managed."
Diebold gave at least $195,000 to the Republican Party during a two-year period starting in 2000, and its chief executive, Walden W. O'Dell, once pledged to deliver Ohio's electoral votes for President George W. Bush.
Joseph Lorenzo Hall, a 28-year-old master's student at the University of California at Berkeley, said he mirrored the Diebold documents because the broader issue involves the "fundamental tenets of our democracy, which is a fair and open election process."
"My opinion is that it's clearly a misuse of copyright law," said Hall, a Linux buff who recently finished his master's degree in astrophysics and is now enrolled in the School of Information Management and Systems. After receiving a DMCA notice from Diebold last Thursday, Hall disabled his mirror and has not decided whether to put it back online, which would expose him to a possible lawsuit.
A typical DMCA letter sent out by Diebold's attorneys says: "Please note that (your) page actively encourages infringing activity. It initially pointed to one infringing Web site. When that Web site was removed two additional links were added pointing to a new Web site hosting the same infringing material."