Copyright, Summary Judgement: Diebold, inc. and Diebold Election Systems

ONLINE POLICY GROUP, NELSON CHU PAVLOSKY, and LUKE THOMAS SMITH,
Plaintiffs,
v.
DIEBOLD, INCORPORATED, and DIEBOLD ELECTION SYSTEMS, INCORPORATED,
Defendants.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

For full details, see:
Case Number C 03-04913 JF

Background to the case (edited slightly)

"Defendants Diebold, Inc. and Diebold Election Systems, Inc. (collectively “Diebold”) produce electronic voting machines. The machines have been the subject of critical commentary. Both the reliability and verification procedures of the machines have been called into question, in part because not all of the machines provide a means for verifying whether a voter’s choice has been recorded correctly. It is undisputed that internal emails exchanged among Diebold employees (the “email archive”) contain evidence that some employees have acknowledged problems associated with the machines. ... According to Diebold, the email archive also contains discussion of “the development of Diebold’s proprietary computerized election systems, as well as Diebold trade secret information, and even employees’ personal information such as home addresses and cell phone numbers.” ... At some point early in 2003, the entire email archive was obtained and reproduced on the internet by unknown persons, giving rise to the events pertinent to the present motions.

"Plaintiffs Nelson Chu Pavlosky (“Pavlosky”) and Luke Thomas Smith (“Smith”) are students at Swarthmore College (“Swarthmore”). Using internet access provided by Swarthmore, which for present purposes is considered their internet service provider (“ISP”), Pavlosky and Smith posted the email archive on various websites. ...

"An on-line newspaper, IndyMedia, published an article criticizing Diebold’s electronic voting machines and containing a hyperlink to the email archive. ... Plaintiff Online Policy Group “OPG”) provides IndyMedia’s internet access.2 OPG, in turn, obtains internet access from an upstream ISP, Hurricane Electric (“Hurricane”). In response to the activities of Pavlosky, Smith, and IndyMedia, and in an alleged effort to prevent further public viewing of the email archive, Diebold sent cease and desist letters to many ISPs, including Swarthmore, PG, and Hurricane, pursuant to the safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”).

"Swarthmore, OPG, and Hurricane were advised that pursuant to these provisions they would be shielded from a copyright infringement suit by Diebold if they disabled access to or removed the allegedly infringing material. Swarthmore thereafter required Pavlosky and Smith to remove the email archive from their website. At the same time, Hurricane notified OPG that it might be required to terminate OPG’s internet access if IndyMedia’s hyperlink to the email archive was not removed. Hurricane agreed, however, not to act during the pendency of the present action, and consequently OPG did not disable access to or remove any material.

"Diebold has not filed any lawsuits related to publication of the email archive. Plaintiffs Smith, Pavlosky, and OPG nonetheless seek injunctive, declaratory, and monetary relief from this Court, alleging that Diebold’s claim of copyright infringement was based on knowing material misrepresentation and that Diebold interfered with Plaintiffs’ contractual relations with
their respective ISPs. Plaintiffs seek a judicial declaration that publication of the email archive, hosting or providing colocation services to websites that link to allegedly infringing material, and
providing internet services to others who host websites that link to allegedly infringing material are lawful activities. They request an injunction to prevent Defendants from threatening or bringing any lawsuit for copyright infringement with respect to the email archive arising from the publication, linking, or hosting services described in the complaint and a judgment barring Defendants from enforcing any copyright in the email archive unless and until Defendants’ alleged copyright misuse has ceased. They also seek $5,185.50 in damages5 and attorneys’ fees
pursuant to 17 U.S.C. § 512(f) for Diebold’s alleged misrepresentation or as otherwise allowed
by law, as well as costs and disbursements."