Student Publishers and ISP Aim to Stop Diebold's Abusive Copyright Claims
Electronic Frontier Foundation Media Release
San Francisco - A nonprofit Internet Service Provider (ISP) and two Swarthmore College students are seeking a court order on Election Day tomorrow to stop electronic voting machine manufacturer Diebold Systems, Inc., from issuing specious legal threats. The Electronic Frontier Foundation (EFF) and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School are providing legal representation in this important case to prevent abusive copyright claims from silencing public debate about voting, the very foundation of our democratic process.

Diebold has delivered dozens of cease-and-desist notices to website publishers and ISPs demanding that they take down corporate documents revealing flaws in the company's electronic voting systems as well as difficulties with certifying the systems for actual elections.

Swarthmore students Nelson Pavlosky and Luke Smith have published an email archive of the Diebold documents, which contain descriptions of these flaws written by the company's own employees.

"Diebold's blanket cease-and-desist notices are a blatant abuse of copyright law," said EFF Staff Attorney Wendy Seltzer. "Publication of the Diebold documents is clear fair use because of their importance to the public debate over the accuracy of electronic voting machines."

Diebold threatened not only the ISPs of direct publishers of the corporate documents, but also the ISPs of those who merely publish links to the documents. In one such instance, the ISP Online Policy Group (OPG) refused to comply with Diebold's demand that it prohibit Independent Media Network (IndyMedia) from linking to Diebold documents. Neither IndyMedia nor any other publisher hosted by OPG has yet published the Diebold documents directly.

"As an ISP committed to free speech, we are defending our users' right to link to information that's critical to the debate on the reliability of electronic voting machines," said OPG's Colocation Director David Weekly. "This case is an important step in defending free speech by helping protect small publishers and ISPs from frivolous legal threats by large corporations."

The Digital Millennium Copyright Act (DMCA), passed by Congress in 1998, provides a "safe harbor" provision as an incentive for ISPs to take down user-posted content when they receive cease-and-desist letters such as the ones sent by Diebold. By removing the content, or forcing the user to do so, for a minimum of 10 days, an ISP can take itself out of the middle of any copyright claim. As a result, few ISPs have tested whether they would face liability for such user activity in a court of law. EFF has been exposing some of the ways that the safe harbor provision can be used to silence legitimate online speech through the Chilling Effects Clearinghouse.

"Instead of paying lawyers to threaten its critics, Diebold should invest in creating electronic voting machines that include voter-verified paper ballots and other security protections," said EFF Legal Director Cindy Cohn.

Links:
Online Policy Group v. Diebold case archive
Cease-and-desist letter Diebold sent to OPG
IndyMedia Web page subject to Diebold cease-and-desist letter
Security researchers discover huge flaws in e-voting system
Link to Chilling Effects on DMCA safe harbor provisions
Media coverage of Diebold threats
Contact:
Wendy Seltzer
Staff Attorney
Electronic Frontier Foundation
wendy@eff.org

Cindy Cohn
Legal Director
Electronic Frontier Foundation
cindy@eff.org

David Weekly
Colocation Director
Online Policy Group
david@onlinepolicy.org



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