September 30, 2004
After all this, I can’t tell you how happy I am to read this. Thank you EFF, Stanford Clinic, OPG, Nelson and Luke, et. al. Not only was (at least most) of the posting fair use, but it was so obviously fair use that Diebold has to pay for its use of the DMCA. The court ruled that 17 USC 512(f) applies to Diebold’s conduct.
From the EFF:
“EFF Wins in Diebold Copyright Abuse Case
Voting Machine Company Liable for Damages, Costs in Landmark Ruling
San Jose – In a landmark case, a California district court has determined that Diebold, Inc., a manufacturer of electronic voting machines, knowingly misrepresented that online commentators, including IndyMedia and two Swarthmore college students, had infringed the company’s copyrights. This makes the company the first to be held liable for violating section 512(f) of the Digital Millennium Copyright Act (DMCA), which makes it unlawful to use DMCA takedown threats when the copyright holder knows that infringement has not actually occured.
The Electronic Frontier Foundation (EFF) and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School sued on behalf of nonprofit Internet Service Provider (ISP) Online Policy Group (OPG) and the two students to prevent Diebold’s abusive copyright claims from silencing public debate about voting.
Diebold sent dozens of cease-and-desist letters to ISPs hosting leaked internal documents revealing flaws in Diebold’s e-voting machines. The company claimed copyright violations and used the DMCA to demand that the documents be taken down. One ISP, OPG, refused to remove them in the name of free speech, and thus became the first ISP to test whether it would be held liable for the actions of its users in such a situation.
‘This decision is a victory for free speech and for transparency in discussions of electronic voting technology,’ said Wendy Seltzer, an EFF staff attorney who worked on the case. ‘Judge Fogel recognized the fair use of copyrighted materials in critical discussion and gave speakers a remedy when their speech is chilled by improper claims of copyright infringement.’
OPG Executive Director Will Doherty said, ‘This ruling means that we have legal recourse to protect ourselves and our clients when we are sent misleading or abusive takedown notices.’
In his decision, Judge Jeremy Fogel wrote, ‘No reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold’s voting machines were proteced by copyright . . . the Court concludes as a matter of law that Diebold knowingly materially misrepresented that Plaintiffs infringed Diebold’s copyright interest.’”