Weaponization of Copyright - Online Policy Group v. Diebold

Voting Machines

Diebold make electronic voting machines. Diebold’s voting machines do not provide a paper back-up. Many people find this disconcerting. Much has been written about hacked Diebold machines rigging the 2004 presidential election in Ohio, thus fulfilling the Diebold CEO’s pledge to deliver the vote to George Bush. It was in this environment that 13,000 pages of internal documents were leaked from Diebold and posted on the Internet. The source of the leak was never disclosed, but many critics of Diebold reposted the leaked documents on various websites.

The Associated Press reported that Diebold had sent cease-and-desist letters to programmers and students at two dozen universities, including the University of California at Berkeley and the Massachusetts Institute of Technology. The letters were ignored by at least one group of students at Swarthmore College, who vowed an "electronic civil disobedience" campaign.

By claiming copyright infringement, Diebold was able to take advantage of the two-weeks free censorship afforded by section 512(g). The students, Pavlosky and Smith, posted the archive on websites they maintained using their Swarthmore ISP account. Diebold sent a C&D to Swarthmore, who then made Pavlosky and Smith remove the archives.

IndyMedia, an online newspaper based in San Francisco, published a news story about Diebold. The story included a hyperlink to another website posting the archive. Diebold sent a take-down notice to OPG, IndyMedia’s ISP, as well as to OPG’s upstream ISP, Hurricane Electric. Both OPG and Hurricane Electric agreed to postpone removing the archive pending the outcome of the litigation. Plaintiffs claimed:

  1. Misrepresentation of copyright infringement
  2. Tortious interference with contractual relations

Plaintiffs want:

  1. Injunctive relief – prevent threat or lawsuits based on posting, linking, and providing ISP services for linkers and posters
  2. Declaratory relief – posting, linking, and providing ISP services for linkers and posters is lawful
  3. Monetary damages - costs and attorney fees pursuant to 512(f)

The Defense - Mootness

In its defense, Diebold said that since the punks from Swarthmore had the temerity to call them on their brash move to misuse copyright law as an instrument of censorship, that they would withdraw their C&D and in the future will not further misuse the DMCA to threaten other ISPs. Basically, we acknowledge that we misused the law to accomplish our own nefarious ends, but Mea Culpa, we won’t do it anymore, so can’t we all just go home now. The judge agreed as to the claims for injunction and declaratory relief. But as to the money, no dice.

Tortious Interference with Contractual Relations

This is the state law claim. The Swarthmore students are basically claiming that by sending a C&D letter to the Swarthmore, that Diebold interfered with their ISP contract. These kind of claims are backup in case the juicy the Misrepresentation claim fails. There is an layout of the elements, but never analysed since it was held that the DMCA pre-empts the state law claims. Compare this with Arista, who declined to take this shortcut and treated us to an analysis of both tortuous interference with contractual relations and Tortious interference with prospective economic advantage (this isn’t the judge’s fault, RIAA never raised this defense).

Copyright Misrepresentation

So this is the meat of the issue – can the Swarthmore students and OPG get money from Diebold for their misrepresentation. In looking at the misrepresentation issue, the court noted that given the apparent newsworthiness of the archive, publishing them would be protected under the Fair Use Doctrine. The Fair Use Doctrine is codified in Section 107 which states that the fair use of a copyrighted work is not copyright infringement. Publication was lawful because to the extent that any portion of the archive was protected by copyright, such use was fair use.

  1. The DMCA take-down notice was insufficient in that it did not identify the copyright content (which portion of the archive was subject to copyright).
  2. Diebold acknowledged in depositions that at least some of the posting was fair use. 3. Fair use test
  • a. Use
    • Use - Posted for purposes of public interest
    • Purpose – Criticism
    • Transformative – yes
  • b. Nature
  • c. Amount – not for profit, but no analysis of ratios, etc.
  • d. Market – no evidence there was market, let alone that it had an effect on it No issue that posting was lawful, that it was fair use, and that it was not copyright infringement. So the test is section 512(f) which says that if Diebold knowingly and materially made that representation, then they have to fork over the bucks.