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Students, ISP Sue Diebold
Quixotic1 writes "The campaign against Diebold that began as electronic civil disobedience took an exciting turn today as the EFF announced that they were filing suit against Diebold for abuse of copyright claims. They will be representing Swarthmore College students and the ISP Online Policy Group, who hosted and linked to copies of controversial internal memos."
Those memos are very interesting. They show that the Diebold people did not care a bit for the elections.
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Now's a good time to Donate to the EFF. As we all now, small donations can add up to a lot, if people who care pitch in.
... and everyone else should too, if you can possibly afford it. This case is the tipping point for me. I've always admired the EFF's work, but most of it hasn't affected me personally. The voting machine issue affects everyone in the US, and given the importance of the US globally, everyone on Earth. Put your money where your mouth is.
The correlation between ignorance of statistics and using "correlation is not causation" as an argument is close to 1.
I disagree. Most of the general public has never heard of them.
Here's why the fair use argument will hold up in court:
- They show intent to break the law (among other things, patching an election system without having the patch certified, not to mention faking demonstrations for elections officials). You can't claim copyright on the plans to rob a bank and then complain when people start investigating.
- The work is factual. This isn't about pirating The Matrix or Britney Spears.
- The memos (themselves) are not marketable. Yes, of course, this will affect Diebold's business immensely. But the DMCA's fair use clause only applies to works that themselves have a market.
- They're fundamental to democracy -- and aren't checked in any other way. The Supreme Court can operate "in secret" (though it's not really all that secret) because they are checked by the Congress. We have no mechanism for impeaching Diebold, especially if they cloud all of their vote-counting procedures under trade secrets or spurious claims of copyright(-infringement).
I would say, in fact, that this is one of the most solid copyright-contesting cases to come along in a while.
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the sewers belch me up.. the heavens spit me out... from ethers tragic I am born again... and now i'm with you now
If you want to cause trouble for them, just demand a recount. When it is found to be impossible, people will notice. For the conspiracy minded, notice that the loser didn't contest the election and demand a recount - This makes sense if you think they are all really on the same side and the public is the enemy. I'm not that cynical yet, but a lot of /. readers are :-)
The question isn't whether they have a copyright on these documents; they do.
The question is whether they can be republished anyway under fair use.
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the sewers belch me up.. the heavens spit me out... from ethers tragic I am born again... and now i'm with you now
Of course Diebold retains copyright to its memos.
But copyright does not trump all other interests, specifically copyright does not prevent the documents from being used in a criminal investigation or civil discovery action. It doesn't even prevent the documents from being used in making arguments to open a criminal investigation or initiate a civil suit.
IMHO (and as a non-lawyer who has a strong professional interest in civil liberties) what Diebold is doing is legally no different from some sick bastard who videotapes himself drugging and raping women trying to prevent his victims from taking the video to the police. The harm caused by allowing the complaints to be squelched is far greater than the harm caused by forcing disclosure against the wishes of the copyright holder.
Now if Diebold was sending C&D orders to prevent their inclusion in a general interest book on computer voting systems... then they might have a case. In that case the memos would be used to enrich somebody else, not to call attention to a matter of critical public interest.
For every complex problem there is an answer that is clear, simple, and wrong. -- H L Mencken
My question is this:
There seems to be many, many people who are very passionate about this issue. Why can't someone produce a talented team to produce a free, open source alternative to Diebold's system and then pitch it to concerned governments?
Slot machines in Vegas don't serve the same purpose as voting machines, but the system set up to regulate those slot machines, their manufacture, programming, every part of their operation, is very secure. Voting machines are just another example of an industry prime for careful regulation.
I regret to say that I must agree with you: This case is going to be a tough one for the EFF.
The primary problem is that past court cases have already "settled" the question of public interest vs. copyright. Sadly, the courts decided that copyright trumps compelling public interest, and that copyright holders can silence any critics who attempt to use their own words against them in the theater of public debate. These decisions were sought and obtained by the Scientology cult.
Schwab
Editor, A1-AAA AmeriCaptions
Most of the public has seen their names on ATM machines. While they might not know much about the company, they know they give them cash, and that's good enough for many a joe consumer.
the pentagon papers were not copyrighted, as they were gov't documents (which cannot be CR'd). so, it's not similar at all, other than the fact that the public has an interest in the contents of both.
Stupid people make stupid things profitable.
Once the originals of the memos have been presented in court don't they become something that anyone can read as part of the court record? If so at the least the EFF could post the court transcripts and make the memos public that way.
Scientology documents have marketable value; ie they were made available to high level members who pay money to achieve that high a level in the Scientology organisation. It is therefore possible to argue that the Scientology documents lose value as a tool to encourage members to progess within the organisation (and get access to thee documents) if made publicly available.
So there is a difference between these cases.
I'm not sure if there is a way to prevent this but if I boot a linux box on a gentoo install cd, I get root access. The obvious precaution is to set the bios to only boot from the harddrive, but many are'nt set up that way. Seems if you have physical access to a computer there's not much to stop you from having root access.
Um, the only thing *civilized* governments fear is people in the streets (not a correction to the quote, a correction to the idea). Take China, for instance. People marched in the street, and even stood up to tanks. Then they got mowed down by machine gun fire and were run over by the tanks.
Try this quote, instead: "Power comes from the end of a gun." Considering that quote is from someone who actually seized power over a country with hundreds of millions of people and not a wide-eyed visionary novelist, I think it delivers a more powerful statement.
God invented whiskey so the Irish would not rule the world.
Sorry ideologically laden poster but...
A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.
That comma causes more problems... but the subject of the sentance is "A well regulated Militia" and not "the people." The problem is that people are no longer members of a well regulated militia.
Therefore in no small way they have abdicated thier rights to bear arms. They only well regulated milita I can think of is intercity Gangs. So the issue is more than a little confused. They best example of proper use of the 2nd was the Black Panthers. They were well regulated and used arms to prevent abuse by government. Some ex-postal worker with a real AK-47 is not protected by the ideas of the forefathers.
"The only thing that governments fear is people in the streets"
This maybe true after a fact but it sure doesn't seem to apply to GWB. He is the most protested president is US history and it hasn't even affected any part of his administration or policy. Maybe its becasue he wasn't elected by "the people" but by the electoral college.
OK, I've been doing a little background reading, and my question is, how are internal memos copyrightable? Isn't a copyright supposed to be issued to a work for sale? Unless someone in the company is selling copies of the internal memos, how is it protected?
If they wanted to protect the information, couldn't they invoke Trade Secrets? It would seem to me a better path than copyright.
Of course, couldn't Diebold be liable for sedition? They are trying to usurp the power of the election, something clearly listed and enumerated in the Constitution. Of course, I'm not a lawyer, check out the wording.
http://www4.law.cornell.edu/uscode/18/2384.html
Remember the DirecTV extortion case? The people complaining about the extortion not only got slapped down by the court, the court made them pay DirecTVs legal costs to the tune of $100,000. Same thing will happen here.
The courts hate people challenging copyright.
"Now, let's think about the United States. Gun ownership is much higher, and involves much more sophisticated weaponry."
I wasn't aware that the general american populace had access to something more sophisticated than surface to air heat seeking rockets.
But this is a fight we have to take on locally. Find out what's used in your district. If they use black-box machines with no paper trail (virtually everyone does) then hit 'em with a big ole ream of this. Send it your city councilmember, call your Congresscritter and your Senators, bitch to your local paper, blog. Do something.
My favourite excerpts:
Or how about:
Or even:
Makes me feel all warm and gooey inside, but not in that comfortable, sated, internally glowing way. In that queasy, rumbling, internally bleeding, hosting-an-Alien-baby kind of way.
I'm no grammar expert, but I'd like to point out that some people miss 1 or 2 of the commas in the 2nd Amendment. From the Library of Congress version, there are 3 commas. "A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed." This sentence has 4 phrases. Not one of these phrases alone is a clause and cannot stand independently; no phrase has the proper subject-verb relationship to convey a complete thought. The phrase "being necessary to the security of a free state" is a present participle; it acts as an adjective modifying the noun "[a well regulated] militia." It contains neither the subject nor verb of the sentence. Taken together, "a well regulated militia, being necessary to the security of a free state," is an absolute phrase; absolute phrases do not modify any specific word in a sentence, but rather modify the entire sentence by providing context. "The right of the people to keep and bear arms" is the subject phrase of the sentence. The subject is "the right." "Of the people" and "to keep and bear arms" are prepositional phrases modifying "the right." "Shall not be infringed" is the verb phrase of the sentence. "Shall not be" is an auxiliary verb string modifying the main verb "infringed."
Therefore, the main idea conveyed by this sentence is "the right shall not be infringed."
I hope Diebold doesn't settle or withdraw their claims. Or if they do, then the EFF doesn't accept or withdraw their suit.
I hope the EFF take Diebold to court and subpoena them for all their worth. Get to the bottom of this. Establish a public record of just how incompetent or, more likely, corrupt these voting system companies can be. Call in expert witnesses. Depose the (largely Republican) executives. Find records of the communications Diebold has been having with election officials across the country, and why they haven't been doing their jobs. Shame them into getting a clue. Anything they can think of to establish the truth about how our democracy (?) is being run.
What's that old saying? "Open mouth, shoot self in foot." Something like that.
Diebold might win this case, but just the fact that it is being brought means that they have lost. All the facts will be aired and Diebold will lose the public trust. It's hard to imagine how a voting machine company could continue to operate under those circumstances.
But on to the case itself: According to the traditional four points courts consider in determing fair use, I'd say the EFF has a pretty reasonable case. (Though the DMCA will probably come into play and, as we all know, the DMCA can shred fair use rights entirely).
Here is my layman's analysis of the four points of Fair Use as they apply here:
1. "The nature of the copyrighted work"
As a long, factual type of work (as opposed to a work of artistic expression, something highly creative and original, or something like a short poem or song), these memos will enjoy the LEAST possible amount of protection of any kind of work, under this point. This point clearly weighs towards the students/ISPs.
2. "The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes"
The character of the use is clearly non-commercial, which weighs heavily in favor of fair use. Especially since students and a university were involved, there could be some argument made about "nonprofit" and "educational purposes". Here, too, is where EFF can argue convincincly that it is in the public interest to have these important documents in full public view. Furthermore, extracts from or summaries of the documents would not serve the public interest in the same way that the full set of verbatim documents do.
3. "The amount and substantiality of the portion used in relation to the copyrighted work as a whole"
This is the only point that weighs heavily against the students/ISPs. Unfortunately, some judges will find in favor of the copyright holder if even ONE of the four points weighs in favor of the copyright holder.
4. "The effect of the use upon the potential market for or value of the copyrighted work." The market value of the literary copyright on this work is $0, and this weighs heavily in favor of the students/ISPs. Diebold never intended to sell these documents or make a profit from their copyright on these documents.
Entirely irrelevant is the fact that Diebold may lose money because of negative publicity or as a result of the revelation of embarrassing information in the copyrighted material. I believe that there is good precedent on this matter (though I'll have to leave it to the lawyers among you for the details).
The court is supposed to weigh all four factors together. Three of the four factors weigh towards the students/ISPs, which is certainly good. But I did happen to read a case not that long ago (not being a lawyer, I can't give the citation, sorry) in which the judge summed up very similar to they way I just did, found that 3 of the 4 points clearly favored Fair Use, and then ruled for the copyright holder. In his opinion, the fact that ALL of the work had been copied outweighed all the rest of the points. (I seem to recall that the case was actually rather similar to this one, and involved verbatim copying of "Church" of Scientology documents which proved various nefarious actions on the part of church members.)
Someone said that copyright doesn't apply until something is published. That isn't true (at least in the U.S.) and hasn't been for many years (since 1979?). Copyright in a work exists from the moment it is fixed in a tangible medium (ie, from the moment it is written, typed, recorded, videotaped, etc. etc.).
No copyright registration or copyright notice is required. However--the damages that can be collected are severely limited if the work was not registered with the copyright office BEFORE the violations occured.
The copyright for the Memos was certainly not registered when this whole t
Where are you getting gun ownership data from? Iraq had much more liberal gun laws (as in, letting people have more access to guns) then the US, and they were not nearly as well enforced. Lots of people had pistols and even Kalishnakov assault rifles. Even today you see people who still have plenty of missiles and mortars and grenades and such.
I know the CPA has been trying to crack down on gun ownership, but I'd be surprised if there is less gun ownership there then here.
(so much for an armed populous preventing dictatorships as the NRA people seem to think)
autopr0n is like, down and stuff.
It might be a better idea to contact your state and county governments, who control those things now and make sure they know how you feel before the election.
autopr0n is like, down and stuff.
Um, the only thing *civilized* governments fear is people in the streets (not a correction to the quote, a correction to the idea). Take China, for instance. People marched in the street, and even stood up to tanks. Then they got mowed down by machine gun fire and were run over by the tanks.
Actually it sounds to me as if the Chinese government was very afraid, why else massacre the marchers? Unfortunately I don't have the information to know if those peoples deaths led to the chinese government trying to improve the situation so the same thing wouldn't happen again, or if fact if it caused them to tighten their grip so the same thing wouldn't happen again. One thing I do know is that the chinese government was truly afraid and I suspect they were extremely fortunate that they didn't lose power. You can fight a person, you can fight a group of people, you can even fight a large march as the chinese government showed, but what happens when you have to fight an entire city or even a nation? I strongly suspect if the protest had spread just a little more widely then China would be a very different place today. No the Chinese government was definately afraid.
I stole this Sig
"How can one of Bush's top fundraisers be allowed to run the company producing the computerized voting machines to tally his votes in the next coup de corp?"
How could you claim to be a free country if you had a law that specifically prevented that individual from doing so? The conflict of interest is clear, perhaps, but there seems to be no problem with disclosure. You want to be the first one down the slope where you decide what ventures people may or may not invest in? You want to use the theory that there might be a vast right-wing conspiracy as your criterion to make that decision? You willing to do this without evidence?
The Diebold memos are evidence of poor management, and poor quality control processes. Possibly there is even evidence of some fraud, but it looks like the fraud is limited to a coverup of quality deficiencies. It's a long, long way from here to exposing the conspiracy that finally brings down the house of cards on top of The Man.
-fb Everything not expressly forbidden is now mandatory.
Hey, why not use this ability to submit Propositions for something good, and use them to outlaw closed source, paper trail-less, unaudtable voting machines like Diebold's here in Alameda County.
It would be good if this could get on the March primary ballot, so that there'd be time to ditch them before November, and for other states to realize that they should ditch them, too.
I did just realize, there's a huge conflict of interest with using Diebold voting machines to count votes on an anti-Diebold proposition. We'd have to conduct opinion and exit polls to make sure that the results of the election agreed with how people actually though, since Diebold has already shown that they can't be trusted, and often get the wrong results (always in favor of Republicans, it seems).