Online Policy Group v. Diebold, Inc.

Online Policy Group v. Diebold, Inc.
EFF helped protect online speakers by bringing the first successful suit against abusive copyright claims under the Digital Millennium Copyright Act (DMCA). This landmark case set a precedent that allows other Internet users and their ISPs to fight back against improper copyright threats.

In OPG v. Diebold, 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. 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.

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." In turn, Diebold had violated section 512(f) of the DMCA, which makes it unlawful to use DMCA takedown threats when the copyright holder knows that infringement has not actually occured.

Diebold subsequently agreed to pay $125,000 in damages and fees.

Order Granting In Part And Denying In Part Crossmotions For Summary Judgment [PDF 112k] September 30, 2004
Transcript from Summary Judgment hearing February 9, 2004
Plaintiffs' Opposition to Defendents' Motion for Summary Judgment January 30, 2004
Defendents' Opposition to Plaintiffs' Motion for Summary Judgment January 30, 2004
Plaintiffs' Motion for Summary Judgment January 12, 2004
Declaration of Cohn in Support of Plaintiffs January 12, 2004
Declaration of Pavlosky in Support of Plaintiffs January 12, 2004
Declaration of Weekly in Support of Plaintiffs January 12, 2004
Declaration of Laroia in Support of Plaintiffs January 12, 2004
Defendants' Motion for Summary Judgment January 12, 2004
Defendants' Notice of Motion for Summary Judgment January 12, 2004
Declaration of Sand in Support of Defendants January 12, 2004
Defendants' Proposed Order January 12, 2004
Diebold Withdrawal Letter to Will Doherty of OPG (December 3, 2003)
Diebold's Answer to Complaint, (December 5, 2003)
Scheduling Order Detailing Diebold's Withdrawal of Threats (PDF 34k - December 1, 2003)
Diebold Response to Cohn Letter (PDF 391k - November 24, 2003)
Transcript of Preliminary Injunction (November 17, 2003)
Letter of Cindy Cohn
Supplemental Declaration of Benny Ng regarding Diebold's "second notice" to Hurricane Electric (PDFs, November 17, 2003)
Plaintiffs' Reply Brief on Preliminary Injunction (PDF 175k - November 14, 2003)
Declaration of Vincent V. Carissimi, Swarthmore College Counsel (PDF 154k)
Proposed Preliminary Injunction Order (PDF 73k)
Second Supplemental Declaration of Luke Thomas Smith (PDF 412k)
Amendment to Application for Preliminary Injunction (PDF 12k)
Diebold's Opposition to Motion for Preliminary Injunction (PDF 2.2MB - November 12, 2003)
Declaration of Nancy Reeves (PDF 154k - November 12, 2003)
Plaintiffs' Supplemental Brief Supporting Preliminary Injunction (PDF 908k - November 7, 2003)
Supplemental Declaration of David E. Weekly (PDF 328k - November 7, 2003)
Supplemental Declaration of Luke Thomas Smith (PDF 572 - November 7, 2003)
Judge Fogel's order, setting expedited hearing schedule for Preliminary Injunction (November 4, 2003)


Complaint (November 4, 2003)
First Amended Complaint, (November 14, 2003)
Application for Temporary Restraining Order (November 4, 2003)
Proposed Temporary Restraining Order (November 4, 2003)
Declaration of David E. Weekly, OPG Board Member
Declaration of Luke Thomas Smith, Swarthmore Student
Declaration of Nelson Chu Pavlosky, Swarthmore Student
Declaration of Benny Ng, Hurricane Electric
Declaration of Wendy Seltzer, EFF Staff Attorney
Diebold's opposition to TRO (November 4, 2003)


Diebold cease-and-desist letter to OPG
EFF's response to Diebold on behalf of OPG
Press releases
EFF Wins in Diebold Copyright Abuse Case Sept 30, 2004
Diebold Coughs Up Cash in Copyright Case Oct 15, 2004
Electronic Frontier Foundation and Stanford Law Clinic Sue Electronic Voting Company
ISP Rejects Diebold Copyright Claims Against News Website
Media coverage:
File Sharing Pits Copyright Against Free Speech (Requires free registration) [John Schwartz, New York Times]
Black Box Voting Blues [Steven Levy, Newsweek]
Diebold Issues Threat to Publishers of Leaked Memos [AP]
E-Vote Protest Gains Momentum [Wired]
Students Fight E-Vote Firm [Wired]
Commentary:
Latest DMCA Takedown Victim: The Election Process [Ed Foster, Gripelog]
Something Truly Terrifying [Tom Tomorrow, This Modern World]
(Electronic) Civil Disobedience at Swarthmore [Ernest Miller, The Importance Of...]
Swarthmore Crackdown on Protesting Students Reaches New Low [Ernest Miller, The Importance Of...]
Related documents/resources:
Congressman Dennis J. Kucinich endorses open design processes for electronic voting machines, and condemns Diebold's coercive copyright claims.
Security researchers discover huge flaws in e-voting system
Chilling Effects on the DMCA's safe harbor provisions


Courtesy: EFF