Electronic Frontier Foundation Media Release

For Immediate Release: Monday, November 3, 2003

Electronic Frontier Foundation and Stanford Law Clinic Sue Electronic Voting Company

Student Publishers and ISP Aim to Stop Diebold's Abusive Copyright Claims

San Francisco - A nonprofit Internet Service Provider (ISP) and two Swarthmore College students are seeking a court order on Election Day tomorrow to stop electronic voting machine manufacturer Diebold Systems, Inc., from issuing specious legal threats. The Electronic Frontier Foundation (EFF) and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School are providing legal representation in this important case to prevent abusive copyright claims from silencing public debate about voting, the very foundation of our democratic process.

Diebold has delivered dozens of cease-and-desist notices to website publishers and ISPs demanding that they take down corporate documents revealing flaws in the company's electronic voting systems as well as difficulties with certifying the systems for actual elections.

Swarthmore students Nelson Pavlosky and Luke Smith have published an email archive of the Diebold documents, which contain descriptions of these flaws written by the company's own employees.

"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 importance to the public debate over the accuracy of electronic voting machines."

Diebold threatened not only the ISPs of direct publishers of the corporate documents, but also the ISPs of those who merely publish links to the documents. In one such instance, the ISP Online Policy Group (OPG) refused to comply with Diebold's demand that it prohibit Independent Media Network (IndyMedia) from linking to Diebold documents. Neither IndyMedia nor any other publisher hosted by OPG has yet published the Diebold documents directly.

"As an ISP committed to free speech, we are defending our users' right to link to information that's critical to the debate on the reliability of electronic voting machines," said OPG's Colocation Director David Weekly. "This case is an important step in defending free speech by helping protect small publishers and ISPs from frivolous legal threats by large corporations."

The Digital Millennium Copyright Act (DMCA), passed by Congress in 1998, provides 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, for a minimum of 10 days, 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. EFF has been exposing some of the ways that the safe harbor provision can be used to silence legitimate online speech through the Chilling Effects Clearinghouse.

"Instead of paying lawyers to threaten its critics, Diebold should invest in creating electronic voting machines that include voter-verified paper ballots and other security protections," said EFF Legal Director Cindy Cohn.

For this release: http://www.eff.org/Legal/ISP_liability/OPG_v_Diebold/20031103_eff_pr.php

Online Policy Group v. Diebold case archive: http://www.eff.org/Legal/ISP_liability/OPG_v_Diebold/

Cease-and-desist letter Diebold sent to OPG: http://www.eff.org/Legal/ISP_liability/cease_desist_letter.php

IndyMedia Web page subject to Diebold cease-and-desist letter: http://www.indybay.org/news/2003/09/1649419_comment.php

Security researchers discover huge flaws in e-voting system: http://www.eff.org/Activism/E-voting/20030723_eff_pr.php

Link to Chilling Effects on DMCA safe harbor provisions: http://www.chillingeffects.org/dmca512/

Media coverage of Diebold threats: http://www.wired.com/news/business/0,1367,60927,00.html

About EFF:

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression and privacy online. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at http://www.eff.org/

About Center for Internet and Society Cyberlaw Clinic at Stanford Law School:

The Center for Internet and Society (CIS) is a public interest technology law and policy program at Stanford Law School and a part of Law, Science and Technology Program at Stanford Law School. The CIS brings together scholars, academics, legislators, students, programmers, security researchers, and scientists to study the interaction of new technologies and the law and to examine how the synergy between the two can either promote or harm public goods like free speech, privacy, public commons, diversity, and scientific inquiry. The CIS Cyberlaw Clinic gives Stanford Law School students an opportunity to work with clients on cases and legal projects that involve questions of technology, law and the public interest.

About OPG:

The Online Policy Group (OPG) is a nonprofit organization dedicated to online policy research, outreach, and action on issues such as access, privacy, the digital divide, and digital defamation. The organization fulfills its motto of "One Internet With Equal Access for All" through programs such as donation-based email, email list hosting, website hosting, domain registrations, colocation services, technical consulting, educational training, and refurbished computer donations. The California Community Colocation Project (CCCP) and QueerNet are OPG projects. OPG focuses on Internet participants' civil liberties and human rights, like access, privacy, safety, and serving schools, libraries, disabled, elderly, youth, women, and sexual, gender, and ethnic minorities. Find out more at http://www.onlinepolicy.org/

About IndyMedia:

IndyMedia is an international network working to build a decentralized, non-commercial media infrastructure to counter an increasingly consolidated corporate media. IndyMedia collectives have spread rapidly since the WTO protests in Seattle 1999, with IMC groups now working throughout North & South America, the Middle East, Europe, Africa, Asia and Oceania, accessible through http://www.indymedia.org/

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