Diebold 512(f) Smackdown...

This is good news!

Background: I received a cease and desist from Diebold, Inc. last fall due to my having posted the email/memo archive at question in this case.

Aaron Swartz over at Copyfight points out that Stanford has a rule where if a student gets two cease-and-desist letters, their Internet connection is immediately disconnected. Note, even though the C&D that I received was withdrawn by Diebold months ago and that a Court has found that Diebold misused copyright law in sending the C&D's, if I were at Stanford, my next C&D would trigger this rule.

As Aaron says, this does not encourage the intellectual and political growth that we should encourage in students. Further, in cases like mine, this rule punishes those that test the bounds of ridiculous uses of intellectual property law.

If, however, a user subsequently receives a second notice, his or her connection is immediately disabled and the user is merely copied on the Disconnect Request.

This seems like an unreasonable and unfair punishment, considering that a DMCA request contains no actual evidence of infringement and there are no sanctions for filing a false one. It is not hard to imagine this power being abused. But Stanford provides no checks on this power; indeed, it amplifies it by quickly disconnecting the user's Internet connection. What purpose does this serve?

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I thought Stanford wanted to inspire learning and creativity. As your own law professor Lawrence Lessig notes "creativity always builds on the past". Such a draconian "two complaints and you're out" policy hardly seems conducive to encouraging creativity.

Read on for some choice quotes from the OPG v. Diebold opinion.

[More:]

Here are some good excerpts from the opinion:

Publication of some of the contents in the email archive is lawful.

At the hearing on Plaintiffs' motion for preliminary injunction, Diebold's counsel asserted that portions of the email archive contain material that is copyrighted and has no “public interest” value. However, Diebold did not identify and has never identified specific emails that contain copyrighted content, and thus it has not provided evidence to support its counsel's assertion. At the same time, Diebold appears to have acknowledged that at least some of the emails are subject to the fair use doctrine. The purpose, character, nature of the use, and the effect of the use upon the potential market for or value of the copyrighted work all indicate that at least part of the email archive is not protected by copyright law. The email archive was posted or hyperlinked to for the purpose of informing the public about the problems associated with Diebold's electronic voting machines. It is hard to imagine a subject the discussion of which could be more in the public interest. If Diebold's machines in fact do tabulate voters' preferences incorrectly, the very legitimacy of elections would be suspect. Moreover, Diebold has identified no specific commercial purpose or interest affected by publication of the email archive, and there is no evidence that such publication actually had or may have any affect on the putative market value, if any, of Diebold's allegedly copyrighted material. Even if it is true that portions of the email archive have commercial value, there is no evidence that Plaintiffs have attempted or intended to sell copies of the email archive for profit. Publishing or hyperlinking to the email archive did not prevent Diebold from making a profit from the content of the archive because there is noevidence that Diebold itself intended to or ould profit from such content. At most, Plaintiffs' activity might have reduced Diebold's profits because it helped inform potential customers of problems with the machines. However, copyright law is not designed to prevent such an outcome. Rather, the goal of copyright law is to protect creative works in order to promote their creation. To the extent that Diebold argues that publication of the entire email archive diminished the value of some of its proprietary software or systems information, it must be noted that there is no evidence that Plaintiffs published or linked to the archive in order to profit. Finally, Plaintiffs' and IndyMedia's use was transformative: they used the email archive to support criticism that is in the public interest, not to develop electronic voting technology. Accordingly, 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.

Diebold violated section 512(f).

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Applying this standard and in light of the evidence in the record, the Court concludes as a matter of law that Diebold knowingly materially misrepresented that Plaintiffs infringed Diebold's copyright interest, at least with respect to the portions of the email archive clearly subject to the fair use exception. No reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold's voting machines were protected by copyright, and there is no genuine issue of fact that Diebold knew-and indeed that it specifically intended-that its letters to OPG and Swarthmore would result in prevention of publication of that content. The misrepresentations were material in that they resulted in removal of the content from websites and the initiation of the present lawsuit. **The fact that Diebold never actually brought suit against any alleged infringer suggests strongly that Diebold sought to use the DMCA's safe harbor provisions-which were designed to protect ISPs, not copyright holders-as a sword to suppress publication of embarrassing content rather than as a shield to protect its intellectual property.
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