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 Chilling Effects Clearinghouse > Notices > Keyword : Diebold Email Ar Printer-friendly version

Keyword: Diebold Email Ar

In late 2003, as questions about the security and verifiability of electronic voting machines were mounting, Diebold Inc. faced several leaks of code, data, and internal emails. These documents were quickly picked up and circulated by researchers and activists.

Diebold responded by threatening dozens of ISPs with lawsuits if they allowed users to post or link to the code or to a Diebold email archive documenting flaws in the company's e-voting technology. Most ISPs responded by forcing users to take down the material, but Jim March filed a successful counter-notification, and Online Policy Group, IndyMedia, and two Swarthmore students, Nelson Pavlosky and Luke Smith sued, represented by EFF and the Stanford Cyberlaw Clinic: lawsuit archive.

In a victory for free speech and transparency in electronic voting debates, Judge Fogel of the Northern District of California found that Diebold should pay damages and attorneys' fees for its knowing misuse of the DMCA's takedown provisions. Decision here.

Judge Fogel ruled that "there is no genuine issue of material fact that Diebold, through its use of the DMCA, sought to and did in fact suppress publication of content that is not subject to copyright protection." He further held that sending claims of copyright infringement to ISPs when their users are not infringing violates the DMCA's Section 512(f) prohibition on "knowingly materially misrepresent[ing]" infringement. Because Diebold "actually knew, should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations," it was liable to the OPG and Swarthmore student plaintiffs under 512(f).

SubjectSenderRecipientDateTopic AreaLinked?
Diebold Withdraws DMCA 512 Notice (UC Berkeley) Diebold Election Systems, Inc. University of California at Berkeley December 02, 2003 DMCA Safe Harbor and Responses 
yes 
Diebold Email Archive Takedown Notice to Indiana University (Diebold #2) Diebold, Incorporated University IT Policy Officer October 28, 2003 DMCA Safe Harbor and Linking 
yes 
Diebold Email Archive Takedown Notice to MIT (Diebold #1) Diebold, Inc. Massachusetts Institute of Technology October 28, 2003 DMCA Safe Harbor 
yes 
Diebold Email Archive Takedown Notice to University of California, Berkeley (Diebold Diebold, Inc. University of California, Berkeley October 28, 2003 DMCA Safe Harbor 
yes 
EFF Supports Online Policy Group's Resistance Online Policy Group Diebold, Incorporated October 22, 2003 Responses   
Diebold Chases Host-to-Host-to-Links to e-Voting Memos Diebold, Incorporated Online Policy Group October 10, 2003 DMCA Safe Harbor, Linking, and Copyright and Fair Use 
yes 
Jim March responds to Diebold's takedown demand Jim March Diebold and Internet Service Provider September 18, 2003 Responses   
Diebold threatens Jim March Diebold Inc. [Presently member of the BoD, Blackboxvoting.org - not at that time though] September 04, 2003 Anticircumvention (DMCA), DMCA Safe Harbor, and Copyright and Fair Use 
yes 
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