I'm not sure how this one is relevant to the topic at hand, but here are my notes on the subject.

In October of 2003, Diebold issued a cease-and-desist notice to Indymedia, because we had links to mirrors of a damning internal Diebold memo that was leaked. As a result of challenges by the Electronic Frontier Foundation (EFF), The Online Policy Group (OPG), and Indymedia, Diebold was forced to back down out of embarrassment.

Sometime in early 2003, an unknown person or persons obtained and reproduced on the Internet copies of an archive of email messages exchanged between employees of Diebold, a manufacturer of electronic voting machines. According to court documents, some emails in the archive acknowledged problems associated with Diebold's machines. Two Swarthmore students obtained copies of the leaked email messages and posted them on their server at Swarthmore. An anonymous poster described these documents on Indymedia, and linked to their location at Swarthmore. Subsequently, commenters and other posters on indymedia linked to other places where the documents were hosted as well.

On October 10, 2003, Diebold sent a DMCA takedown notice to Online Policy Group (OPG), a nonprofit web hosting company providing services to the IMC The letter asserted that Indymedia was infringing Diebold's copyrights by providing links to webpages containing the leaked email correspondence and demanded that OPG remove or disable access to the links in question. OPG refused, responding in an October 22 letter that neither OPG or Indymedia was hosting the alleged infringing material, that linking was not among the exclusive rights granted by copyright law, and that the postings on Indymedia were fair use.

OPG and the two college students then sued Diebold in federal court in November 2004, claiming that the company had violated section 512(f) of the DMCA, which creates a cause of action for damages, including costs and attorneys fees, for "knowingly materially misrepresent[ing]" in a takedown notice "that material or activity is infringing." The court granted summary judgment to OPG on its section 512(f) claim, finding that portions of the email archive were so clearly subject to the fair use defense that "[n]o reasonable copyright holder could have believed that [they] were protected by copyright." According to the EFF, Diebold subsequently agreed to pay $125,000 in damages and fees to settle the lawsuit.

Last modified 14 years ago Last modified on Apr 12, 2008, 12:56:15 AM