Diebold Withdraws DMCA 512 Notice (UC Berkeley) -- Chilling Effects Clearinghouse

Recipient Information:
[Private]
University of California at Berkeley
Berkeley, CA, 94720

Sent via: email, postal fol
Re: DMCA Notification Withdrawal [of ChillingEffects notice 930]

From the outset, I want to emphasize that Diebold's overarching goal is to assist voters in exercising their most fundamental constitutional right: the right to vote. We believe that our touch screen and other electronic voting technologies are a major leap forward in helping more Americans vote with increased accuracy and accessibility. Touch screen technology eliminates "overvoting" and significantly reduces "undervoting." In addition, our touch screen technology offers multi-lingual ballot capability and enables the visually impaired to vote without assistance for the first time in their lives.

We recognize that how America votes is a matter of intense public interest, as it should be, and we support the electorate's right to participate in an open and robust debate on that topic. I want to assure you that my company's use of the Digital Millennium Copyright Act in response to the theft of internal information and development materials does not diminish our commitment to the constitutional values of our country.

No company-whether an ISP, a software developer, or any type of company-wants its internal conversations openly broadcast, and I am sure your internal business correspondence includes information involving the unique capabilities and insights that you feel are important to the successful operation of your company. The correspondence between individuals within our company often contains information concerning unique software, features and capabilities that provide Diebold with a potential advantage in a competitive marketplace. This type of information constitutes Diebold's work product and important intellectual property.

With that background, here is what led to the current situation. In January of this year, some software and other material was inadvertently exposed through a website of a predecessor company. In March, a hacker broke into one of our servers and stole a considerable quantity of our documents including a significant archive of information which is proprietary to Diebold. As you can imagine, the issue for Diebold, as for any other company in a similar circumstance, was what to do about the theft of its property in which it had a copyright interest, especially given the ease and quickness with which the stolen material could and did spread around the Internet.

In order to protect its intellectual property rights, Diebold chose to notify ISPs, as expressly permitted by the DMCA, that stolen material, in which Diebold has a copyright interest, was being hosted on or linked to websites under the ISP's control. Although we believe our legal position was and continues to be correct, we recognize that our DMCA efforts have become the story, and may be influencing the debate on how America's votes can be recorded and tallied most accurately.

To help refocus the public debate on that central issue, and recognizing that a considerable amount of the stolen email archive is now widely available on the Internet, Diebold has decided not to sue ISPs or their subscribers for copyright infringement for the non-commercial use of the materials. We are also withdrawing the DMCA notifications previously sent to you and other ISPs.

In taking this action, we are underscoring Diebold's commitment not only to provide the best voting systems in America, but to contribute to a robust public debate on how to record and tally the vote most accurately and efficiently. We welcome your input and suggestions concerning how we as citizens can further enhance the election process. Please let me know if you have any questions or comments concerning our position.

FAQ: Questions and Answers

[back to notice text]

Question: How are the safe harbor provisions applied to educational institutions?

Answer: The safe harbor provisions make a special exception to educational institutions that qualify as service providers under section 512. [512(e)] While a corporation is responsible for the activities of its employees, faculty members or graduate student employees who are performing teaching or research functions are not considered a part of the institution itself for certain infringing activities so as to maintain the academic freedom of these institutions. [512(e)(1)]

The institution can therefore avoid liability for infringement even if the infringing individuals knew they were infringing, provided that:

the infringing activities did not involve the provision of access to materials required for a course within the previous three years [512(e)(1)(A)]
the institution has not received more than two notifications of alleged infringement by the faculty member or graduate student in the preceding three year period [512(e)(1)(B)]
the institution provides all users of its network or system with informational materials that describe and promote compliance with copyright law [512(e)(1)(C)]

[back to notice text]

Question: What is the Digital Millennium Copyright Act?

Answer: The DMCA, as it is known, has a number of different parts. One part is the anticircumvention provisions, which make it illegal to "circumvent" a technological measure protecting access to or copying of a copyrighted work (see Anticircumvention (DMCA)). Another part gives web hosts and Internet service providers a "safe harbor" from copyright infringement claims if they implement certain notice and takedown procedures (see DMCA Safe Harbor).

[back to notice text]

Question: What is copyright infringement? Are there any defenses?

Answer: Infringement occurs whenever someone who is not the copyright holder (or a licensee of the copyright holder) exercises one of the exclusive rights listed above.

The most common defense to an infringement claim is "fair use," a doctrine that allows people to use copyrighted material without permission in certain situations, such as quotations in a book review. To evaluate fair use of copyrighted material, the courts consider four factors:

the purpose and character of the use
the nature of the copyrighted work
the amount and substantiality of copying, and
the market effect.

(17 U.S.C. 107)

The most significant factor in this analysis is the fourth, effect on the market. If a copier's use supplants demand for the original work, then it will be very difficult for him or her to claim fair use. On the other hand, if the use does not compete with the original, for example because it is a parody, criticism, or news report, it is more likely to be permitted as "fair use."

Trademarks are generally subject to fair use in two situations: First, advertisers and other speakers are allowed to use a competitor's trademark when referring to that competitor's product ("nominative use"). Second, the law protects "fair comment," for instance, in parody.

[back to notice text]

Question: What is the purpose of the fair use defense?

Answer: There is no easy answer to this question. However, one way to approach the question is to examine the purposes of the copyright laws.

The clause of the Constitution that gives Congress the power to enact copyright laws indicates that the purpose of the given power is to "promote the progress of science and the useful arts" by allowing authors to secure the exclusive rights in their works for "limited times." Thus, many see the Constitutional scheme behind copyright as a kind of balance between (1) forming incentives for authors to create new works by giving them rights that will allow them to make money from their works, and (2) limiting the rights so that the works themselves are useful to the public and in turn advance the "progress of science and the useful arts."

Fair use fits into this scheme by giving the public the right to use copyrighted works in certain situations even though the author has exclusive rights. That is, in some circumstances, such as certain uses involving scholarship or research, the "progress" referred to in the Constitution is best promoted and the public is best served by allowing an unauthorized use of the copyrighted work. These uses are deemed fair because they are consistent with the power given to Congress to enact copyright laws.

[back to notice text]

Question: What kinds of things are copyrightable?

Answer: In order for material to be copyrightable, it must be original and must be in a fixed medium.

Only material that originated with the author can support a copyright. Items from the public domain which appear in a work, as well as work borrowed from others, cannot be the subject of an infringement claim. Also, certain stock material might not be copyrightable, such as footage that indicates a location like the standard shots of San Francisco in Star Trek IV: The Voyage Home. Also exempted are stock characters like the noisy punk rocker who gets the Vulcan death grip in Star Trek IV.

The requirement that works be in a fixed medium leaves out certain forms of expression, most notably choreography and oral performances such as speeches. For instance, if I perform a Klingon death wail in a local park, my performance is not copyrightable. However, if I film the performance, then the film is copyrightable.

Single words and short phrases are generally not protected by copyright, even when the name has been "coined" or newly-created by the mark owner. Logos that include original design elements can be protected under copyright or under trademark. Otherwise, words, phrases and titles may be protected only by trademark, however.

[back to notice text]

Question: What is the purpose of the fair use defense?

Answer: There is no easy answer to this question. However, one way to approach the question is to examine the purposes of the copyright laws.

Fair use fits into this scheme by giving the public the right to use copyrighted works in certain situations even though the author has exclusive rights. That is, in some circumstances, such as certain uses involving scholarship or research, the "progress" referred to in the Constitution is best promoted and the public is best served by allowing a use of the copyrighted work. These uses are deemed fair because they are consistent with the power given to Congress to enact copyright laws.

[back to notice text]

Question: What are the DMCA Safe Harbor Provisions?

Answer: In 1998, Congress passed the On-Line Copyright Infringement Liability Limitation Act (OCILLA) in an effort to protect service providers on the Internet from liability for the activities of its users. Codified as section 512 of the Digital Millennium Copyright Act (DMCA), this new law exempts on-line service providers that meet the criteria set forth in the safe harbor provisions from claims of copyright infringement made against them that result from the conduct of their customers. These safe harbor provisions are designed to shelter service providers from the infringing activities of their customers. If a service provider qualifies for the safe harbor exemption, only the individual infringing customer are liable for monetary damages; the service provider's network through which they engaged in the alleged activities is not liable.

[back to notice text]

Question: What are the notice and takedown procedures for web sites?

Answer: In order to have an allegedly infringing web site removed from a service provider's network, or to have access to an allegedly infringing website disabled, the copyright owner must provide notice to the service provider with the following information:

The name, address, and electronic signature of the complaining party [512(c)(3)(A)(i)]
The infringing materials and their Internet location [512(c)(3)(A)(ii-iii)], or if the service provider is an "information location tool" such as a search engine, the reference or link to the infringing materials [512(d)(3)].
Sufficient information to identify the copyrighted works [512(c)(3)(A)(iv)].
A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of [512(c)(3)(A)(v)].
A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner [512(c)(3)(A)(vi)].

Once notice is given to the service provider, or in circumstances where the service provider discovers the infringing material itself, it is required to expeditiously remove, or disable access to, the material. The safe harbor provisions do not require the service provider to notify the individual responsible for the allegedly infringing material before it has been removed, but they do require notification after the material is removed.

Diebold Withdraws DMCA 512 Notice (UC Berkeley)

Topic maintained by Chilling Effects