Diebold Rejected in Copyright Takedown Attempt

JimMarch(equalccw) writes "Our favorite crooked voting company Diebold has lost a MAJOR copyright case (click for ruling here or description here). Short form: Diebold's internal documents (key excerpts here and here and here) and code were floated all over the 'net last year, showing all kinds of horror. Diebold filed cease'n'desist notices under the DMCA (such as mine linked here); a court has now ruled that Diebold wrongfully abused the DMCA by issuing these takedown notices about materials that they knew were not covered by their copyright."

Comments

So, when's the perjury trial?

[acceleriter]

The takedown notices were sent under penalty of perjury, right? And there isn't even the wiggle room of the perjury clause only pertaining to the statement that the sender is an agent of the copyright holder, since the documents weren't covered by copyright.

Bet they're well enough connected that none of them will be prosecuted for it, though.

Re:So, when's the perjury trial?

[Anonymous Coward]

Last year one of my customers was threathened by a representant of SABAM, the local RIAA equivalent.

Basically they stated, under penalty of perjury, that my customer was using, without proper license, works of a copyright holder that SABAM represented. Well, that customer was using _my_ original work, under my permission. And I never appointed SABAM as my representant.

I made a telephone call to the representant, spelling out that she was committing an act of perjury by stating that she represented the rightful copyright holder. She quickly backed up, but I warned that if this would happen a second time, I would not hesitate to file a criminal complaint.

I rather have people illegally enjoying my copyrighted works then some criminal association illegally claiming that they represent me.

Yes, I consider SABAM criminal. Perjury _is_ a criminal offense.

Re:So, when's the perjury trial?

[Lord Flipper]

Thanks to media soundbites that state little more than "copying music online is illegal" the world is getting the impression that unless you're a big media company, it's just plain illegal to distribute ANY music online.

...that's the whole point of this brouhaha over file-sharing. What really concerns the companies represented by RIAA, and other Media conglomerates is the--almost inevitable, and industry-altering--change in the distribution of creative works: Artists using free/open source, or at least far cheaper independent means of distribution and business, in general.

That's why I, as an occasional music downloader, and long-time pro musician, accept the risk, and welcome the fact that the 'industry' is laying off on going after the p2p software and network people--thanks to the Courts--and focusing on end users.

It isn't 'fair', for the reasons outlined by other posters here, but fairness has never had anything to do with Recording Industry aims, practices, or contracts.. And that is exactly why I hope to live long enough to see the first real blockbuster artist/group go totally independent.

Sweet

[Anonymous Coward]

One more chink in the DMCA's armor!

A few more f*ckups like this, and we might be able to succesfuly repeal this legislation based on how vague it is, and the potential for abuse that it offers.

Not that I'm against copyrights... Just the over-extension of those rights.

Copywrite Infringement

[Tyndmyr]

Im fairly happy to see this, and not just because of my dislike of diebolds massive security issues with the voting machines.

This is a relatively clear instance of attempted legal intimidation, a common tactic used by companies with the financial and legal clout.

I really love the part where they describe "encouraging and assisting in the circumvention of copywrite protection systems". Seems like quite a stretch to me.

Just the fact that....

[GillBates0]

companies can go as far as sending frivolous C&D's and threatening action (if no response is received within "24 hours" as in this case) tells me something is screwed up about the system.

Most people would be intimidated with such a letter, and comply with out due to lack of resources or in pursuing/challenging it's validity. This, and the absence of any timely deterrent (fines, punishment) further encourages Diebold/RIAA/SCO and their ilk to use meaningless C&D and lawsuits as an intimidation and FUD technique without any approval from the legal system.

My Obligatory Diebold Link:

[ImaLamer]

Example of Diebold at it's best

So what is the punishement?

[Yaa 101]

I wanna see punishment... When personal sombody makes even a mistake they are punished from here to tokyo. I want to see the same with a arrogant company that rapes laws.

Making a killing in the voting-machine biz

[5n3ak3rp1mp]

All this is so retarded. Here's my proposed solution.

1) Voting machines are running webpages in kiosk mode.
2) Web/database server set up to receive votes. Second backup server up and running and ready to go if there's a problem.
3) All votes are recorded THRICE... once to the "main" database, once to the second backup server database within a transaction, and once... printing out each vote, at the point of voting, line-by-line to one of 2 dot-matrix printers!

Redundancies: If a client machine goes down, replacing it with another one is easy. If the server goes down, there is always the other one. If the printer goes down or runs out of ink or paper, you swap it with the other one (maybe have a 3rd as spare).

The only hack this would require is getting an old dot-matrix printer to talk to a modern server and only print out one line at a time.

The software part is E-Z. And the clients would of course have touchscreens.

Now go make a killing off my idea. Just credit "Lectrick", a mysterious man from the Net underground...

Is it just me...

[scovetta]

or has the last few weeks had quite a few "Your Rights Online" articles that were actually good for the people?

It's usually, "Microsoft Patents Breathing" or "RIAA shoots two 6-year old copyright violators", but these are actually starting to restore my faith in humanity. Not that much, but a little bit.

Re:"Abused" the DMCA?

[91degrees]

Yes.

There's a right way and a wrong way to abuse the DMCA. Diebold chose the wrong way.

the press..?

[soloes]

I dont know if it will help, but maybe if enough of us flod the major news agencies with the Demonstration at http://www.equalccw.com/dieboldtestnotes.html#step bystep
maybe they will give in and run this. So here are some contacts:
Nightly@NBC.com
http://www.abcnews.go. com/sections/wnt/WorldNewsTo night/WNT_newemail_form.html
cbsnews.com click on contact us
http://www.cnn.com/feedback/tips/

I know they know about this, but maybe they dont know how much we already know.

Summary misses the most important part

[swillden]

The article summary didn't even mention what I think is the best part of this ruling. The summary makes it sound like Diebold didn't own the copyright on the materials it ordered be taken down, but Diebold clearly does own the copyright. So what's the basis for ruling that the takedown notice was improper?

Fair Use. The judge says that the posting of the material did not constitute infringement because it "was posted or hyperlinked to for the purpose of informing the public about the problems associated with Diebold's electronic voting machines." Since the posting was in the interest of public discussion, it was Fair Use, and Diebold knew that, or should have known it, and not issued the takedown notices.

It's nice to see that even if no one in the legislature seems to understand the concept of Fair Use, the judges haven't forgotten it.

It would be even nicer if Diebold received a stiff fine for abusing the process, above and beyond the damages and legal fees they're going to be ordered to pay. The dangerous power of the DMCA "safe harbor" provisions would be significantly reduced if copyright owners had to worry about getting slapped down, hard, for using it inappropriately.

Here is the key part - and the RIAA better watch

[Anonymous Coward]

A party is liable if it "knowingly" and "materially" misrepresents that copyright infringement has occurred. "Knowingly" means that a party actually knew, should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations.

Under this standard, using bots to send automatic DMCA notices based on file names, would fail this legal test, and thus the sender of such a notice (RIAA) would violate the DMCA and the sender would be liable to the recepient.

Double negative?

[lawpoop]

Diebold "wrongfully abused" The DMCA act? Does that mean that they used it properly?

Get Involved & Protest

[ImaLamer]

Funny, you said: " we won't just lie down and accept their incompetence and deception."

That is exactly what I propose, in sorts. If you arrive at your polling place a face problems, sit down, don't move until you are arrested. If your voter touch screen malfunctions - don't leave the booth until your true vote is counted.

The only way to fight problems, as they arise on election day, is to get arrested and have your case heard in front of a judge. The polling people don't care, the cops don't care, no one will care the day after if you are just complaining... you must make it official.

I'm just talking non-violent protest.

Unless you have serious problems... then we get violent.

I was just discussing this with my 'not-to-into-politics' girl friend and I gave her the same basic advice. She is supposed to vote in a poor neighborhood where I can imagine a million problems happening, especially with all those Colored now registered to vote there. If they don't have her name down, I said don't leave until you vote.

Spread the word - if you have problems on election day, don't move until your problem is resolved.

Non violent protest worked for Martin Luther King and Ghandi right? It can work for the rest of us.

They do for the most part, but

[PotatoHead]

the problem is they have far more power.

Ever notice how the rich get treated with kid gloves? It is because they can afford to be well represented. Money talks in our legal system, and most of us don't have much of it.

Re:No penalty of perjury

[acceleriter]

Right--and Diebold didn't hold a copyright on the material they were trying to take down, and therefore wasn't the copyright holder, and therefore committed perjury.

If that isn't perjury, then I can claim to be the copyright holder of anything, send a takedown notice, and not be guilty of perjury since I did not lie about being a representative of myself.

Killed two birds with one stone...

[KD5YPT]

the court did. (Sorry for the Yoda reference... but can't resist it when type the Subject).

Here's how.

1. Rule against Diebold, now all knows truth.
2. Rule the DMCA is being abused, that's one ruling AGAINST DMCA.

Re:"Good Faith belief"

[DM9290]

Just like many other crimes, to be guilty of perjury, a person must typically have willful intent or at a bare minimum, knowledge.

Good faith belief is a higher standard than mere belief. So if the DMCA requires good faith, this is a good thing. (that is to say the words "good faith" didn't lower the standard themselves).

It is not enough to simply claim good faith, for good faith to exist. good faith must be based on some kind objective reasons and you are not simply choosing to believe something because you have a vested interest in believing your competition is violating your copyright and accusing them of doing so.

Without a good faith requirement, then someone could simply 'choose' to believe as an act of free will, and claim whatever the hell they want.

I was under the impression that historically a defence against any charge of perjury has always been 'belief' or 'good faith belief'. In fact I was under the impression that perjury was knowingly making a false statement under oath.

Does the DMCA lower the standards of perjury?

let me tell you, "good faith" is a pretty loose standanrd.

"good faith belief" is pretty loose. But it is less loose than "bad faith belief". We all have the right to believe whatever we want to, but that doesn't make any belief automatically 'good faith'.

I believe that "good faith belief" does put some burden on the believer to at least consider any information they have which should lead them to question or doubt their belief, and have an excuse prepared as to why they disregarded it. Whereas simple belief allows the believer to arbitrarily disregard out of hand anything which doesn't agree with their belief just because they didn't believe it.

'belief' is not proof.

Perhaps the DMCA should require proof rather than belief, but changing the definition of perjury (just for the DMCA) would be a mistake.

Just to be clear: I am opposed to the DMCA.