Two students from Swarthmore College have filed suit against one of the nation's largest makers of electronic voting machines, alleging that Diebold, Inc. had abused copyright laws to keep information from the public that is crucial to the health of America's democracy.
The students used the Internet to post Diebold's internal memos and emails, saying the documents show the company knew its voting machines were vulnerable to tampering and that it knowingly violated election laws.
Diebold issued cease-and-desist letters to Swarthmore, the students' service provider, claiming the emails are protected under copyright law.
Though Swarthmore shut down the students' network connections until they had removed the disputed material, other students across the country, including three at Princeton, have begun to post — or "mirror" — this information on their University websites in what some call an act of civil disobedience.
"This legal system is being used as a tool of the corporations — in a sense, people like Diebold just want to protect their own interests," Bryan Cattle '07 said regarding his decision to mirror the company's emails. "Something like that needs to be seen, especially for a company that's carrying the torch of American democracy by providing facilities for elections and vote counting."
The Princeton students said the University has not yet asked them to remove the information from their websites.
University lawyers were unavailable for comment.
One of the Princeton students is a 'Prince' staff writer.
The Online Policy Group, an ISP, has joined the Swarthmore students as co-plaintiffs to prevent Diebold from issuing additional cease-and-desist letters. Prior to joining the suit, OPG had received one of the letters.
The groups are suing for their right to post the leaked memos under the "fair use" clause of the Copyright Act, which allows copyrighted material to be used in news reporting and for the purpose of criticism or comment.
"There is a public debate in the public space occurring over the safety and security of these machines," said Charles Pence '07, the third student mirroring the documents. "I think that issues like these are best discussed when the truth is available in the public forum."
Pence's view is one that the plaintiffs' hope will convince the California judge hearing the case.
"We think that the cease and desists are an abuse of copyright, using the copyright laws to try to stifle discussion and criticism and to intimidate ISPs into taking down contents that their users have posted or even to remove links to these documents," said Wendy Seltzer, a staff attorney for Electronic Frontier Foundation, a civil liberties organization representing the plaintiffs along with the Center for Internet and Society Cyberlaw Clinic at Stanford University.
Diebold has abused copyright laws, viewing them as an "expeditious way to take documents offline," she said.
Pence said students on the mailing list of those mirroring the Diebold documents have similarly compared Diebold's strategy to a game of "whack-a-mole."
"They cannot claim copyright violations and remove these memos for solely political reasons, which is I think precisely what they are attempting to do," he said.
Members of the EFF and OPG hope the case will set an important precedent protecting ISPs from companies who use cease-and-desist letters as an intimidation tactic, said David Weekly, an OPG offical.
"This case could make the Internet a more reasonable place to publish information without worrying about getting a spurious cease-and-desist letter," Weekly said.
OPG also hopes the case will prohibit corporations from filing charges of "tertiary or quaternary infringement" — accusing not only a website of violating copyright laws, but also the server of the website and even the server of that server, he said.
"As an ISP, we feel it's necessary to send a clear message that it's not okay to send cease-and-desist letters so far up the chain," he said.
Diebold has claimed the email documents in question are protected by copyright law and also that it doubts the authenticity of the emails — in which case the documents may not be protected by copyright law — questioning whether company employees were actually the authors or if the documents were tampered with, a company spokesman said.
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