Reverse DMCA: Copyright Holder Held Liable in Landmark Legal Ruling

R. A. Hettinga rah at
Sat Oct 2 18:06:26 EDT 2004

LinuxElectrons -

Reverse DMCA: Copyright Holder Held Liable in Landmark Legal Ruling
 Thursday, September 30 2004 @ 08:18 PM
 Contributed by: ByteEnable

In a landmark case, a California district court has determined that
Diebold, Inc., a manufacturer of electronic voting machines, knowingly
misrepresented that online commentators, including IndyMedia and two
Swarthmore college students, had infringed the company's copyrights. This
makes the company the first to be held liable for violating section 512(f)
of the Digital Millennium Copyright Act (DMCA), which makes it unlawful to
use DMCA takedown threats when the copyright holder knows that infringement
has not actually occured.

The Electronic Frontier Foundation (EFF) and the Center for Internet and
Society Cyberlaw Clinic at Stanford Law School sued on behalf of nonprofit
Internet Service Provider (ISP) Online Policy Group (OPG) and the two
students to prevent Diebold's abusive copyright claims from silencing
public debate about voting.

Diebold sent dozens of cease-and-desist letters to ISPs hosting leaked
internal documents revealing flaws in Diebold's e-voting machines. The
company claimed copyright violations and used the DMCA to demand that the
documents be taken down. One ISP, OPG, refused to remove them in the name
of free speech, and thus became the first ISP to test whether it would be
held liable for the actions of its users in such a situation.

"This decision is a victory for free speech and for transparency in
discussions of electronic voting technology," said Wendy Seltzer, an EFF
staff attorney who worked on the case. "Judge Fogel recognized the fair use
of copyrighted materials in critical discussion and gave speakers a remedy
when their speech is chilled by improper claims of copyright infringement."

OPG Executive Director Will Doherty said, "This ruling means that we have
legal recourse to protect ourselves and our clients when we are sent
misleading or abusive takedown notices."

In his decision, Judge Jeremy Fogel wrote, "No reasonable copyright holder
could have believed that the portions of the email archive discussing
possible technical problems with Diebold's voting machines were proteced by
copyright . . . the Court concludes as a matter of law that Diebold
knowingly materially misrepresented that Plaintiffs infringed Diebold's
copyright interest."

R. A. Hettinga <mailto: rah at>
The Internet Bearer Underwriting Corporation <>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'

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