Electronic voting machine maker Diebold agreed this week to
withdraw threats from ISPs and web sites over the posting of leaked
company e-mails that allegedly revealed product flaws. Two students
and an ISP had challenged the US company's actions as "chilling
free speech".
The college students had published on-line a collection of
company e-mails allegedly revealing flaws in its e-voting system,
as well as problems in certifying the systems for elections.
Diebold responded by sending cease-and-desist letters under
America's Digital Millennium Copyright Act (DMCA).
The DMCA provides ISPs with a safe harbour in the event that
they are hosting material that infringes copyright: if they remove
the offending material within ten days of receiving a
cease-and-desist order, they escape liability. In most cases, ISPs
comply immediately.
Diebold sent dozens of the notices to web site publishers and
ISPs which hosted sites publishing the documents, and even to those
who merely published links to the documents, including the
Online Policy Group.
The Online Policy Group did not comply, and instead went to
court to obtain a temporary restraining order against Diebold. Its
Colocation Director David Weekly explained:
"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."
In a conference call on Monday between US District Court Judge
Jeremy Fogel and lawyers for Diebold, OPG and the two students,
Diebold decided not to press the copyright issue.
The company agreed to withdraw the cease-and-desist letters, and
confirmed that it would not sue, or send further orders to any
other party who published the e-mails in the future.
According to a report on Wired News, Diebold's spokesman, David
Bear, warned that the agreement did not mean that the DMCA did not
actually apply to the e-mails. "We've simply chosen not to pursue
copyright infringement in this matter," he said.
Civil rights group the Electronic Frontier Foundation was
representing OPG in the action. EFF staff lawyer Wendy Seltzer
said, "We're pleased that Diebold has retreated and the public is
now free to continue its interrupted conversation over the accuracy
of electronic voting machines."
She added, "We continue to seek a court order to protect
posters, linkers, and the ISPs who host them."
The case has now been put out to mediation, but a full hearing
is set for 9th February.
Things may get worse for Diebold, following intervention by
Congressman Dennis Kucinich. In a new web site, Kucinich links to
the controversial e-mails, and states:
"Diebold has been using coercive legal
claims to intimidate internet service providers and even
universities to shut down websites with links to its memos and
remove the memo content."
He adds:
"By abusing the Digital Millennium Copyright
Act, Diebold has intimidated numerous internet service providers to
comply with its requests. The damage is two-fold: 1) limiting the
public's information about the security of its voting machines, and
2) expanding corporate control over our most free medium of
expression, the internet."
Kucinich has now referred the matter to the House Judiciary
Committee.
