Diebold Backs Down in eVoting Case

E-voting machine manufacturer Diebold has agreed to withdraw its cease-and-desist orders against privacy groups and
several ISPs that had hosted or linked to sites that published internal e-mails discussing problems with e-voting technology.

Privacy groups The Online Policy Group (OPG) and the Electronic Frontier Foundation (EFF) called the Diebold withdrawal an initial victory in their efforts to set new precedents in how the Digital Millennium Copyright Act (DMCA) is applied.

The internal e-mails in question were originally between Diebold employees, and discussed issues over flaws and security vulnerabilities they said they found in Diebold e-voting machines.

In invoking the DMCA as part of its cease and desist attempt, the North Canton, Ohio, manufacturer originally maintained that discussion of the vulnerabilities was a copyright infringement of its intellectual property; specifically, it said OPG was guilty of indirect copyright infringement when it posted a link to another Web site that contained the Diebold documents.

The EFF — representing OPG and two college students who originally
published the email documents — quickly filed suit against Diebold to
retract the cease-and-desist orders. The group asked for declatory judgment from a federal court in California in a bid to determine whether Diebold had any right to send shutdown orders in the first place.

The EFF argued that publication of vulnerabilities wasn’t copyright infringement, and provided necessary public debate over the legitimacy of machines that would be used to decide elections.

Now, the EFF said it is looking to turn the
screws on the safe harbor clause, which the EFF says can still be used
by any corporate entity to file a copyright infringement suit against
ISPs who don’t abide by cease-and-desist orders. ISPs can invoke a safe harbor clause when a copyright holder tells them have material on a site that contains copyrighted material. They have 10 days to comply or they can also be subject to the same copyright infringement case as the one their customer is facing.

Wendy Seltzer, EFF staff attorney, said there should be another remedy
within the DMCA — outside the safe harbor provision — to protect ISPs and individual citizens who are harmed by companies who misrepresent themselves.

“We’re still looking for damages under the DMCA for misrepresentations that this material was infringing and a declaratory judgment that this was lawful,” Seltzer said.

Diebold, for its part, said it plans to sit down with the EFF to mediate the current issues.

“It is true that we have chosen not to pursue copyright infringement,”
said David Bear, Diebold spokesperson. “We’re working in hopes to
negotiate a settlement on the suit filed by the EFF on behalf of the

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