Online Policy Group v. Diebold, Inc.
LATEST UPDATE: On October 15, 2004, Diebold agreed to pay damages and legal fees of $125,000 in a precedent-setting win for free-speech activists.
UPDATE: The judge in the case ruled on September 30, 2004, that Diebold inappropriately threatened copyright violations for those who published or linked to their corporate email archive and their Internet Service Providers like the Online Policy Group.
Diebold, Inc., manufacturer of electronic voting machines, has been sending
out many cease-and-desist letters to Internet Service Providers (ISPs),
after internal documents indicating flaws in their systems were published on
the Internet. The company cited copyright violations under the Digital Millennium
Copyright Act (DMCA) and demanded that the documents be taken down.
Now EFF
and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School
are fighting back, seeking a court order on behalf of nonprofit
ISP Online Policy Group (OPG) and two Swarthmore College students to prevent
Diebold’s abusive copyright claims from silencing public debate about
voting, the very foundation of our democratic process.
“Diebold’s blanket cease-and-desist notices are a blatant abuse of copyright
law,” said EFF Staff Attorney Wendy Seltzer. “Publication of the
Diebold documents is clear fair use because of their direct relevance to the
debate over the accuracy of electronic voting machines.”
The documents
include email messages written by Diebold employees describing security flaws
in the systems, as well as email discussions about how to resolve,
or in some cases, obfuscate those problems.
The DMCA contains a "safe harbor" provision
as an incentive for ISPs to take down user-posted content when they receive
cease-and-desist letters
such as the ones sent by Diebold. By removing the content, or forcing the user
to do so, an ISP can take itself out of the middle of any copyright claim.
As a result, few ISPs have tested whether they would face liability for such
user activity in a court of law.
Lawsuit Documents
- Judge's Summary Judgement Order (PDF 109k - September 30, 2004)
- Diebold's Opposition to Motion for Preliminary Injunction (PDF 2.2MB - November 12, 2003)
- Amendment to Application for Preliminary Injunction (PDF 12k - November 12, 2003)
- Second Supplemental Declaration of Smith (PDF 412k - November 12, 2003)
- Declaration of Nancy Reeves (PDF 154k - November 12, 2003)
- EFF's Supplemental Brief on behalf of OPG (PDF 908k - November 7, 2003)
- Supplemental Declaration of David Weekly (PDF 328k - November 7, 2003)
- Supplemental Declaration of Luke Thomas Smight (PDF 572 - November 7, 2003)
- Judge Fogel's order, setting expedited hearing schedule for Preliminary Injunction (November 4, 2003)
- Diebold's opposition to Temporary Restraining Order (November 4, 2003)
- Proposed Temporary Restraining Order (November 4, 2003)
- Application for Temporary Restraining Order (November 3, 2003)
- Declaration of Wendy Seltzer, EFF Staff Attorney (November 3, 2003)
- Online Policy Group v. Diebold Complaint (November 2, 2003)
- Declaration of Luke Thomas Smith, Swarthmore Student (November 2, 2003)
- Declaration of Nelson Chu Pavlosky, Swarthmore Student (November 2, 2003)
- Declaration of David Weekly, OPG Board Member (November 1, 2003)
- Declaration of Benny Ng, Hurricane Electric (October 31, 2003)
- OPG response to Diebold cease-and-desist letter (October 22, 2003, also available at Chilling Effects )
- Cease-and-desist letter Diebold sent to OPG (October 10, 2003)
Media Releases
Media Coverage
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Diebold Loses Court Case
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A U.S. judge ruled in favor of two Swarthmore students who sued Diebold Inc. for falsely accusing them of violating copyright laws when they posted information on the Internet about possible flaws in its touch-screen voting machines, Akron Beacon Journal (October 5, 2004)
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Diebold Loses Key Copyright Case
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Students who sued Diebold Election Systems won their case against the voting machine maker on Thursday after a judge ruled that the company had misused the Digital Millennium Copyright Act and ordered the company to pay damages and fees, Wired News (September 30, 2004)
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Reverse DMCA: Copyright Holder Held Liable in Landmark Legal Ruling
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In a landmark case, a California district court has determined that Diebold, Inc., a manufacturer of electronic voting machines, knowingly misrepresented that online commentators, including IndyMedia and two Swarthmore college students, had infringed the company's copyrights, LinuxElectrons (September 30, 2004)
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Voting Machine Showdown
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A leading maker of computer election equipment defends itself in court against charges that it overreached itself in trying to stifle critics, Salon (February 10, 2004)
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Organizations and Related Publications
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Diebold Coughs Up Cash in Copyright Case
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The Online Policy Group (OPG) and the
Electronic Frontier Foundation (EFF) capped an historic
victory in a copyright abuse case against electronic
voting machine manufacturer Diebold yesterday., Online Policy Group (October 16, 2004)
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Online Policy Group Wins Copyright Case Against Diebold
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In a landmark case in which the Online Policy Group sued voting machine manufacturer Diebold, Inc., a California district court has determined that Diebold incorrectly claimed that online commentators had infringed the company's copyrights., Online Policy Group (September 30, 2004)
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Latest DMCA Takedown Victim: The Election Process
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Just as a capsule summary in case you've missed it, over the last several months there has been a rising tide of concern regarding the verifiability of electronic voting machines in general and the security, reliability, and integrity of Diebold's technology in particular, Ed Foster's GripeLog (October 30, 2003)
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This web page is an approximate mirror of http://www.eff.org/Legal/ISP_liability/OPG_v_Diebold/
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