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Students fight e-vote firm's DMCA claims

Last modified: November 17, 2003, 5:21 PM PST
By Declan McCullagh
Staff Writer, CNET News.com

A federal judge in San Jose, Calif., heard arguments in a lawsuit brought by student activists seeking to disseminate internal documents from Diebold Election Systems, an Ohio company that sells e-voting software.

U.S. District Judge Jeremy Fogel on Monday spent about an hour on the case, which attorneys for the students filed in an attempt to seek an injunction against what they view as Diebold's abuse of copyright laws to stifle criticism. Diebold asked that internal documents be removed and said that hyperlinks to the documents violate copyright law.

Fogel did not rule immediately on the request filed by the Electronic Frontier Foundation (EFF) and Stanford Law School's Center for Internet and Society. A decision is expected within a week or two, EFF said.

"He's considering the issues and understands the First Amendment import here," said EFF attorney Wendy Seltzer. EFF argues that Diebold's invocation of the Digital Millennium Copyright Act (DMCA), which permits copyright holders to notify Internet providers and demand certain material be removed, violates free-speech guarantees.

Diebold did not respond to interview requests. Diebold Election Systems sells electronic voting systems used in states including California, Georgia, Ohio and Texas. Its parent company, Diebold Inc., is publicly traded and reported revenue of $1.9 billion in 2002.

In the last few months, student activists worried about potentially buggy e-voting softwareand Diebold's ties with the Republican partyhave been busily making scores of copies of Diebold's leaked correspondence available on the Web and asking others to join them in a kind of global keep-away game.

The wealth of Diebold e-mail, which totals about 11MB when compressed, includes internal conversations that cast doubt on the company's ability to sell secure software. Some messages note that lists of bugs were "irrecoverably lost," while others complain of never having been at another company that has been so mismanaged.

Diebold gave at least $195,000 to the Republican party during a two-year period starting in 2000, and its chief executive, Walden W. O'Dell, once pledged to deliver Ohio's electoral votes for President George W. Bush. Earlier this month, California started an investigation into whether Diebold had improperly installed software into Alameda County's machines that had not been certified.

To Diebold, however, this is a straightforward case of copyright infringement. The students cannot "excuse their wholesale use of the stolen material as 'fair use,'" the company said in a court filing. "Wholesale publication of unpublished, stolen materials, with no transformation or creativity and nothing other than a request that others download them in their entirety, is infringement, not fair use."

The case is unusual because it involves hyperlinking, which enjoys an uncertain legal status. "An ISP with knowledge that hyperlinks on its site direct users to potentially infringing material is not immunized from liability," Diebold's filing said. "It is now well established that hyperlinks directing users to Web sites containing infringing material themselves infringe the underlying copyright."

The 2nd Circuit Court of Appeals, in a case involving the major movie studios and 2600 magazine, said in 2001 that hyperlinks to infringing material can be unlawful if they are created "for the purpose of disseminating" the material. But that decision is not binding on California courts.

One employee of an Internet company in the Bay Area, who attended the hearing, said: "I don't think he'll grant the injunction. But he may split the difference."

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