Diebold retreats; ISP sues, Kucinich demands inquiry

Diebold retreats; lawmaker demands inquiry
By Paul Festa
CNET News.com
December 1, 2003, 5:12 PM PT
URL: http://zdnet.com.com/2100-1104-5112430.html

Diebold is facing threats on two fronts as free-speech advocates
pursue monetary damages against it and a presidential candidate
urges a congressional inquiry into the company.

Diebold, which makes touch-screen voting machines in use around the
world, on Monday reiterated its withdrawal of copyright takedown
notices directed at numerous Internet service providers with
subscribers who posted copies of its internal e-mail correspondence--and
in some cases links to those copies.

Those takedown notices, issued under a provision of the Digital
Millennium Copyright Act (DMCA), earned Diebold a lawsuit by an ISP
with a client who linked to the documents and by two Swarthmore
students whose school--acting as their ISP--had removed copies under
takedown threat.

The DMCA takedown provision is designed to let copyright holders
warn ISPs of copyright violations and ask that they be taken down
before filing suit against them. Free-speech advocates argued that
Diebold's notices had less to do with copyright protection than
with damage control.

The internal Diebold e-mail correspondence in question criticized
the company's software, security, certification and sales practices.

Diebold indicated in a Nov. 24 filing with the U.S. District Court
in San Jose, Calif., that it would retract the DMCA notices and
would not sue those who posted the e-mail correspondence or their
ISPs. On Monday, the company restated that promise in the courtroom.

But lawyers who represent the Online Policy Group, an ISP whose
client Indymedia had linked to the Diebold e-mails without posting
them, indicated that they had not finished pressing their case
against Diebold.

Instead, they pledged to seek a court order spelling out that
publishing or linking to the Diebold e-mails doesn't amount to
copyright infringement, as well as monetary damages under the DMCA
on grounds of misrepresentation.

"It's a tremendous victory for free speech, for the Internet as a
communications forum, and it's reaffirming the public side of the
balance that copyright is supposed to embody," Wendy Seltzer, an
attorney with the Electronic Frontier Foundation (EFF), said in an
interview after Monday's hearing.

Seltzer, who represented the Swarthmore students, said the plaintiffs
would seek monetary damages to dissuade companies from using DMCA
takedown notices lightly.

"We've been saying from the beginning that Diebold shouldn't be
able to use copyright law to stop discussion of technologies that
are at the heart of our democracy, and Diebold has finally acknowledged
that by dropping its threats of suit," Seltzer said. "And we plan
to drive that point home to Diebold and anyone else who might be
tempted to misuse copyright similarly."

Diebold did not return calls seeking comment.

Diebold's retreat in the courtroom comes as U.S. congressional
representative Dennis Kucinich, who is seeking the Democratic Party's
presidential nomination, jumped onto the anti-Diebold bandwagon by
providing links to the Diebold e-mail correspondence from his House
of Representatives Web site.
http://www.house.gov/kucinich/issues/voting.htm

The Web site, launched Nov. 20, criticizes Diebold for both its
product and its conduct in pursuing the Swarthmore students.

"Diebold has been using coercive legal claims to intimidate Internet
service providers and even universities to shut down Web sites with
links to its memos and remove the memo content," the site reads.
"By abusing the Digital Millennium Copyright Act, Diebold has
intimidated numerous Internet service providers to comply with its
requests...Congressman Kucinich is working to address these problems
by providing some of Diebold's internal memos on this site to
increase public access..."

Kucinich also asked the U.S. House Judiciary Committee to investigate
Diebold's DMCA takedown notices.

"Diebold's actions are representative of a growing body of abuses
through which large and powerful parties unfairly intimidate ISPs
to remove information those parties do not like," Kucinich wrote
in a letter dated Nov. 21. "Powerful parties should not be permitted
to misuse copyright as a tool for limiting bad press and barring
access to legitimate consumer information."

The court hearing the students' and ISP's case against Diebold sent
the case for mediation, scheduled hearings for motions in January,
and scheduled a final hearing for Feb. 9.