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| Chilling Effects Clearinghouse > DMCA Safe Harbor > Weather Reports > Free Speech Vindicated in OPG v. Diebold | 
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|  Free Speech Vindicated in OPG v. DieboldWendy Seltzer, September 30, 2004 Abstract: In a victory for free speech and transparency in electronic voting debates, Judge Jeremy Fogel has ruled that Diebold should pay damages and attorneys' fees for its knowing misuse of the DMCA's takedown provisions. Decision here.
In a victory for free speech and transparency in electronic voting debates, Judge Jeremy Fogel has ruled that Diebold should pay damages and attorneys' fees for its knowing misuse of the DMCA's takedown provisions. Decision here.
Last October, Diebold threatened dozens of ISPs with lawsuits if they allowed users to post or link to a Diebold email archive documenting flaws in the company's e-voting technology. Online Policy Group, IndyMedia, and two Swarthmore students, Nelson Pavlosky and Luke Smith, didn't want to cave in, so EFF and the Stanford Cyberlaw Clinic sued Diebold on their behalf instead. Today, that action was vindicated. 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).
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