''Online Policy Group v. Diebold, Inc.'', 337 F. Supp. 2d 1195 (

N.D. Cal. The United States District Court for the Northern District of California (in case citations, N.D. Cal.) is the federal United States district court whose jurisdiction comprises the following counties of California: Alameda, Contra Costa, Del ...

2004), was a lawsuit involving an archive of Diebold's (now

Premier Election Solutions Premier Election Solutions, formerly Diebold Election Systems, Inc. (DESI), was a subsidiary of Diebold that made and sold voting machines. In 2009, it was sold to competitor ES&S. In 2010, Dominion Voting Systems purchased the primary asset ...

) internal company e-mails and Diebold's contested copyright claims over them. The Electronic Frontier Foundation and the Stanford Cyberlaw Clinic provided pro bono legal support for the non-profit

ISP An Internet service provider (ISP) is an organization that provides services for accessing, using, or participating in the Internet. ISPs can be organized in various forms, such as commercial, community-owned, non-profit, or otherwise private ...

and the Swarthmore College students, respectively. United States District Judge Jeremy Fogel ruled that the plaintiffs' publishing of the e-mails was clearly a

fair use Fair use is a doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to balance the interests ...

essentially "because there was no commercial harm and no diminishment of value of the works" in their republication. Additionally Diebold was found to have misrepresented its copyright controls over the work, putting them in violation of section 512(f) of the

Digital Millennium Copyright Act The Digital Millennium Copyright Act (DMCA) is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or ...

(DMCA) and leaving them liable for court costs and damages. This was the first time 512(f) had been enforced in court, and set a precedent.

Background

Sometime in the spring of 2003 an unknown hacker broke into Diebold computers and obtained a large portion of their email archives, which was posted to various web sites. In an effort to quash the dissemination of information about security flaws in its voting machines, Diebold had sent dozens of DMCA takedown notices to various ISPs, all of which complied, except for OPG. Diebold sent takedown notices not only to sites actually storing the information, but also to those that merely linked to it. More specifically, Diebold sent DMCA notices to Swarthmore College, the ISP where the two students Nelson Pavlosky and Luke Smith had posted the 15,000 emails on their

Swarthmore Coalition for the Digital Commons Students for Free Culture, formerly known as FreeCulture.org, is an international student organization working to promote free culture ideals, such as cultural participation and access to information. It was inspired by the work of former Stanfo ...

web page.Mother Jones - The Paperless Chase
By

Sabrina Erdely Sabrina Rubin Erdely is an American former journalist and magazine reporter, who in 2014 authored an article in ''Rolling Stone'' describing the alleged rape of a University of Virginia student by several fraternity members. The story, titled " ...

, ''

Mother Jones Mary G. Harris Jones (1837 (baptized) – November 30, 1930), known as Mother Jones from 1897 onwards, was an Irish-born American schoolteacher and dressmaker who became a prominent union organizer, community organizer, and activist. She h ...

'', May/June 2004 Issue Diebold also sent notices to the Online Policy Group, the ISP for an

IndyMedia The Independent Media Center, better known as Indymedia, is an open publishing network of activist journalist collectives that report on political and social issues. Following beginnings during the 1999 Carnival Against Capital and 1999 Seattl ...

site linking to Pavlosky & Smith's web page, and also to

Hurricane Electric Hurricane Electric is a global Internet service provider offering internet transit, tools, and network applications, as well as data center colocation and hosting services at 2 locations in Fremont, California, where the company is based. Acco ...

, OPG's upstream provider. After Swarthmore complied and removed the material, Pavlosky, Smith and the OPG sued Diebold, "asserting the company's accusation of infringement "was based on knowing material misrepresentation," an actionable claim under a provision of the DMCA (17 U.S.C. 512(f)) and, furthermore, "interfered with hecontractual relations" between the students and their Internet service providers". Although Diebold withdrew their DMCA letters after a media backlash, the plaintiffs decided to pursue Diebold in court; before the trial, EFF's legal director Cindy Cohn said that "We think it's important that the court make it clear that if you misuse the powers the DMCA has granted copyright holders, there are going to be serious consequences." The OPG is a free, donation-based

web host A web hosting service is a type of Internet hosting service that hosts websites for clients, i.e. it offers the facilities required for them to create and maintain a site and makes it accessible on the World Wide Web. Companies providing web h ...

run by

Roger Klorese Roger is a given name, usually masculine, and a surname. The given name is derived from the Old French personal names ' and '. These names are of Germanic origin, derived from the elements ', ''χrōþi'' ("fame", "renown", "honour") and ', ' ...

David Weekly David (; , "beloved one") (traditional spelling), , ''Dāwūd''; grc-koi, Δαυΐδ, Dauíd; la, Davidus, David; gez , ዳዊት, ''Dawit''; xcl, Դաւիթ, ''Dawitʿ''; cu, Давíдъ, ''Davidŭ''; possibly meaning "beloved one". w ...

, and

Will Doherty Stardust William David Blumenfeld Doherty (né Will Doherty) is the former executive director of the Verified Voting Foundation and VerifiedVoting.org and was the originator of the Election Incident Reporting System, used to detect over 40,000 p ...

; it was hosting the website for SF Bay Area

Indymedia The Independent Media Center, better known as Indymedia, is an open publishing network of activist journalist collectives that report on political and social issues. Following beginnings during the 1999 Carnival Against Capital and 1999 Seattl ...

(

Indybay The San Francisco Bay Area Independent Media Center, commonly known as Indybay, is the San Francisco Bay Area branch of the Independent Media Center The Independent Media Center, better known as Indymedia, is an open publishing network of acti ...

) whe
a story linking to the Diebold e-mail archive
was posted to Indybay. The link was not a direct link to the e-mail archive: upon reaching the linked page, the reader had to click another link to download the memos themselves. Diebold sent legal threats to OPG, asserting that the memos were copyrighted and that Indybay was committing tertiary infringement by linking to a link to the Diebold memos. When Indymedia and OPG refused to act, Diebold sent legal threats to OPG's upstream ISP,

(HE), effectively accusing HE of quaternary copyright infringement.

Verdict

Judge Fogel noted that Diebold's filing contained contradictory elements, and on the matter of fair use determined that:Safe Harbors and Chilling Effects

Wendy Seltzer Wendy Seltzer is an American attorney and a staff member at the World Wide Web Consortium, where she is the chair of the Improving Web Advertising Business Group. She was previously with Princeton's Center for Information Technology Policy. Se ...

's website, Retrieved 25 Oct 2012. He then concluded that "Diebold violated section 512(f)" of the DMCA:Software & Internet Law: Safe Harbors and Chilling Effects
/ref> Consequently, Diebold was ordered to pay $125,000 in damages. The failure to consider fair use before sending a DMCA notice was also found to compromise its good faith nature in '' Lenz v. Universal Music Corp.'' (2008). ''OPG v. Diebold'' is also used as a textbook illustration of four-factor analysis (of fair use) alongside ''

Sony Corp. of America v. Universal City Studios, Inc. ''Sony Corp. of America v. Universal City Studios, Inc.'', 464 U.S. 417 (1984), also known as the “Betamax case”, is a decision by the Supreme Court of the United States which ruled that the making of individual copies of complete television s ...

'' and '' MGM v. Grokster''.

References

External links

* {{caselaw source , case = ''Online Policy Group v. Diebold, Inc.'', 337 F. Supp. 2d 1195 (

2004) , courtlistener =https://www.courtlistener.com/opinion/2470092/online-policy-group-v-diebold-inc/ , googlescholar = https://scholar.google.com/scholar_case?case=9280842894530460095 , leagle =https://www.leagle.com/decision/20041532337fsupp2d119511436
EFF's official page with all of the court documents

Online Policy Group official website
2004 in United States case law Swarthmore College United States computer case law United States copyright case law United States District Court for the Northern District of California cases Electronic Frontier Foundation litigation Digital Millennium Copyright Act case law Diebold