Under the US Digital Millennium Copyright Act of 1998, ISPs are given protection from liability under copyright rules if they remove web sites containing unauthorised copyrighted material within ten days of receiving a cease-and-desist order from the owner of the copyright.
In most cases ISPs will take down offending sites immediately, but the ISP Online Policy Group (OPG) is refusing to comply with such an order from Diebold. In fact it yesterday requested a temporary restraining order from San Jose District Court, to prevent Diebold from sending any more notices.
Diebold, the manufacturer of electronic voting systems, began sending the orders when two college students, Nelson Pavlosky and Luke Smith, published an e-mail archive of Diebold documents allegedly revealing flaws in the systems, as well as difficulties in certifying the systems for elections.
Dozens of the notices have been delivered to web site publishers and ISPs who host sites publishing the documents, and even to those who merely publish links to the documents – of which the OPG is one.
OPG's Colocation Director David Weekly said:
"As an ISP committed to free speech, we are defending our users' right to link to information that's critical to the debate on the reliability of electronic voting machines... This case is an important step in defending free speech by helping protect small publishers and ISPs from frivolous legal threats by large corporations."
The OPG is being represented by civil rights group, the Electronic Frontier Foundation (EFF). The two students are being represented in the action by the Center for Internet and Society Cyberlaw Clinic at Stanford Law School.
EFF Staff Attorney Wendy Seltzer said:
"Diebold's blanket cease-and-desist notices are a blatant abuse of copyright law. Publication of the Diebold documents is clear fair use because of their importance to the public debate over the accuracy of electronic voting machines."
A decision is expected later in the week.
