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?

[theparanoidcynic]

So, when's the perjury trial?

When hell freezes over and the Cubs face the Red Sox in the world series. Ashcroft would probably have to bring the case.

Re:So, when's the perjury trial?

[Guppy06]

"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."

It all hinges on what's the definition of "is."

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?

[Anonymous Coward]

It's not only the large groups that people need to worry about, but now there's so much litigation around copyrights, some ISPs fear anyone.

A fellow I know (not too well) publishes his own music on his ISPs web access. He doesn't go over quote, it's there for download, he states quite plainly that it's his own work, but it doesn't stop the occasional moron writing him email about piracy, illegally putting music online etc. When those letters go to the ISP, they HAVE pulled his site. It's been reinstated, and he's moves ISP, but the problem still remains.

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 attitude problem is worse than any law, a law which can be repealed if it's wrong. The attitudes tend to entrench themselves in peoples consciousness for a generation.

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.

Re:Sweet

[91degrees]

Erm... This isn't a chink in the DMCA. It's an exception written into the law to prevent abuse of the the legislation.

Unusually for a DMCA story, this part of the law is being used in exactly the way it was intended.

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.

Re:Copywrite Infringement

[FuzzyBad-Mofo]

Do they really use that wording, "copywrite protection system"? Because if they do, it really shows that they are either clueless or actively supporting the newspeak "copy protection is copyright protection" which seems to have become prevalant lately.

To clairify,

Copyright protection is the system of laws which protect copyrighted works.
Copy protection is features added to a work to make it more difficult to duplicate.

The difference is that duplication of a work may not violate copyright law (fair use, public domain), but copy protection would try to prevent it regardless. Getting people to equate copy protection with the copyright itself is a deceit.

The real problem

[coulbc]

Is this so called "Electronic Voting". In my day, we drew straws, and we liked it like that.

Diebold may have failed to take the excerpts down

[iapetus]

...but Slashdot managed it with the reply count still in single figures. Who needs lawyers? :)

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.

Re:Just the fact that....

[AndroidCat]

It's nothing we haven't seen on Slashdot before. (Does Scientology have a patent on their Avagrams?)

"The purpose of the lawsuit is to harass and discourage, rather than to win." "If possible, of course, ruin him utterly." - L Ron Hubbard

My Obligatory Diebold Link:

[ImaLamer]

Example of Diebold at it's best

Get Involved

[d3ik]

We need to make an example out of Diebold to show other companies like them that we won't just lie down and accept their incompetence and deception. I've written both my senators on this and directed them to www.blackboxvoting.org. I would encourage all the other Americans on /. (and foreigners... what the hell, can't hurt) to do the same. If left unchecked, Diebold represents a serious threat to the democratic process.

Wrong!

[Anonymous Coward]

This isn't about the legality of the DMCA. The case is about how Diebold improperly used the DMCA. The memos were never something the DMCA was intended to cover.

WTH?

[GoMMiX]

I violate the DMCA; jail, Jail, JAIL!
Then, FINE FINE FINE!

Diebold violates a persons civil rights, uses the DMCA to do it, gets caught... Bad Diebold, no no!

Something about that just doesn't quite sound right.... Okay, let's see...

I do something, like, ohhh -- say decrypt a satellite signal (which, mind you, is pouncing down on MY ROOF 24/7..) - I go to jail....then when I get out I have fines to pay that will take the majority of my paycheck for years to come.

Okay, now... Diebold threatens a person, causes great anguish in this persons life, forces said person to hire legal council.... basically, makes a significant impact on said persons life...

Diebold, bad, no no - don't do that again! Please? Please don't do that again?

Riiiiiiight... Okay, methinks this sucks!

Re:WTH?

[Pig Hogger]

What right do you have, mere pipsqueak, to infringe on a big croporation's inalienable right to pillage, rape and plunder the world's ressources and people for the benefit of their bottom-line-happy shareholders?

If God had intended people to be more powerful than croporations, it would have endowed them with a dollar generator!

Re:WTH?

[DarkSarin]

He didn't say that decrypting a satellite signal was OK, just that the penalty for an individual doing this was different from the penalty for a corporation doing this, and that this difference is wrong.

I agree with his sentiment. Corporations should NOT be treated as personages, but as extensions of the owners (shareholders) and controllers (CEO, board of directors, shareholders, etc). Thus if a companies executives (controllers) make a decision that is illegal, they should be held responsible for that decision in the same fashion that any individual would be (such as you, sirwired). This would have a large effect on the behavior of companies, and who was willing to invest in a company.

If, for example, I knew that, as a shareholder, I could be held partly responsible for the behavior of any company in which I invested, then I would be VERY careful about what companies I gave my money to as an investment. I would also, along with most other people, monitor their activity very closely, and tell that company to cut it out if they started misbehaving.

In the current system, there is little, if any, check to the behavior of a company. M$'s anti-trust suit is an example of how big money can affect the ability of a company to do whatever they like.

I am not a fan of big government, or big business. Both should be small enough to feel the forces of economic shifts. M$ arguably is immune to this, because they have such a broad array of patents and cash.

There are two major things that can be done to encourage competition and good behavior. First, limit the holding of all copyrights and patents to 5 years, non-extensible--for all cases in which a company is the controlling entity in the use of either. In cases where an individual is the controlling entity (such as a book author), copyright should be granted for the life of the individual, for that individual (that is, if the individual decides to sell the copyright to a company, rather than lease that copyright, then it would expire in 5 years). This scenario would also work for patents. This would give individuals sufficient incentive to innovate outside of the corporate stronghold, but keep companies from sitting on patents and copyrights indefinitely (aka Disney).

The second I have already covered--the treatment of the executors of a company as wholly responsible for the actions of that company.

The laws around this would have to be carefully written to close loopholes to the intent of the law, and to prevent certain possible abuses, but I feel that this would have several effects:

First, companies, guided by the executors, would behave more responsibly, driven by the fear of real consequences.

Secondly, the current bevy of lawsuits over patents would be limited to recent innovations. Companies would no longer be able to worry about the infringement of patents years old.

Third, companies would be forced to innovate quickly. In order to stay ahead of the competition and be certain that money would still roll in 5 years down the road, there would need to be constant innovation. This need for near instant invention of new processes and products would generate a large number of highly technical and skilled jobs--the kind that pay. This would give jobs to those who are exiting school with the good technical (probably engineering, but other areas too) skills. Older workers are protected by the ADEA to a certain degree, and would be able to leverage experience and supervision skills to remain a viable part of the work-force.

Fourth, as companies realize the need for a better educated work force, many would begin to fund private schools in a fashion that they would be available even for those who could not otherwise afford it. Public schools would also get some benefit from this as well.

There is a personal benefit in this two--as the need for a more technical and capable work force emerges, there will be a need for those who are skilled in devising a method to select, hire and motivate these individuals. That is my area of expertise (besides incredibly insightful social commentary--') ).

I've rambled, but really, what I am trying to say is that I am glad Diebold lost, now here's hoping they get hit with a real penalty...

Re:WTH?

[dillon_rinker]

The missing phrase is "to the seller." If a product is known TO THE SELLER to be dangerous, but not to the buyer, then the seller is culpable.

Recall the McDonald's hot coffee lawsuit. McDonald's was selling a product that THEY knew would cause 2nd and 3rd degree burns, and they knew that people would put it in their lap, and they knew that some people would spill it. BUYERS, on the other hand, thought they were buying a product that was hot and would cause discomfort or 1st degree burns at worst.

Who, then, is at fault in a situation like this? Clearly, in the McDonald's coffee lawsuit, the buyer was partially at fault; she spilled something on her that she knew might burn, HOWEVER, she didn't realize the extent or severity of the burns. McDonald's, by not clearly warning of the magnitude of the risk, was also partially at fault. A jury of ordinary Americans determined that McDonald's held most of the blame.

Re:Striking Blow for Imperial America!

[erick99]

Judge Fogel's ruling demonstrates that the legal system, in this case, works just fine.

This really has nothing to do with Homeland Security though some folks sure do go to great lengths to try to make these connections no matter how specious the arguments they have to put forth.

Mainstream media still doesn't know

[Anonymous Writer]

I keep simply mention in the mainstream media that the US elections are going to be using touch screens, but nobody mentions any of these problems with Diebold. Has the mainstream caught on about these controversies with something being done about them, or are they going to remain unaware with Diebold's system being inevitably used?

Re:Mainstream media still doesn't know

[eyeye]

Its because of that damned liberal media! They are so liberal they ignore massive stories that are not in the current regimes interests.

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.

Ebbs anf Flows

[Stokey]

I find it strange how there seem to be tides with regard to law, particulalry in the States. It seemed that a few months ago, Slashdot was full of stories (so many, I can't be bothered to find and link them all) about this or that abude (PATRIOT, Patent Law, Copyright abuse, Trademark disputes, INDUCE, CAN-SPAM oh gods does it stop?), but now we seem to be seeing the downswing (or up if you prefer), where certain parts of laws or acts are finally being shown to be useless or unlawful or just plain dumb.

I wonder if there is an equilibrium point where things settle down (i.e. laws repealed, corrected etc.) before the next round of political changes bring in a whole hoopla of new ones for people to have a crack at. All historians will probably turn round (correctly) and say "yes, but it takes a serious revolution to rebalance the pendulum, but maybe there's another point of transcendence e.g. saturation of the legal profession.

Just wibbling away, please feel free to add wibble.

Stokey

And what...

[Mr Guy]

When hell freezes over and the Cubs face the Red Sox in the world series

No, Ashcroft bringing a case against Diebold is a sign of the Apocalypse.

So to you hell freezing over and the Cubs in the world series just means it's Tuesday?

NPR reported on this...

[flashbang]

NPR reported about Diebold a few times. It's getting some coverage, but I agree, not enough.

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...

Re:Making a killing in the voting-machine biz

[JaredOfEuropa]

Now go make a killing off my idea.

You don't make a killing by implementing trustworthy electronic voting. You make a killing by selling the presidency and other posts up for election to your friends. ;)

In Other News

[Alien54]

Florida releases a sample ballot for the November election.

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:Diebold on the cutting edge

[AndroidCat]

They might be looking at producing one machine to serve several markets: An ATM voting machine for fast food drive-through. Deposit your money, leave your order, and super-size your vote all in one stop!

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.

rightful abuse?

[mshultz]

a court has now ruled that Diebold wrongfully abused the DMCA

...So wait, is there a way to rightfully abuse the DMCA?

Or does simply using the DMCA count as abuse?

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.

Important Precedent

[dunstan]

This is an incredibly important precedent which has been set here, and the defendants have got off lightly because no damages were sought.

Essentially the defendants were trying to use law to suppress an internal email trail which was embarassing to them and, not knowing how the stuff got out, tried to bully ISPs to take the stuff down (yes, I know the section of the DMCA is supposed to be a "get out" clause for ISPs, but does anyone really think that was ever how it was intended to be used?).

Now that this has been judged an unlawful act, I would like to think that the bar has been raised for any potential future litigants.

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?

Re:Double negative?

[wes33]

no, it means that they abused the dmca and it was wrong to do that ... but you knew that already didn't you? There is a place for grammar pedants, but I'm not sure it's /.

Re:Double negative?

[JUSTONEMORELATTE]

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

No no no, it just means that they need some remedial training so they can abuse it correctly next time.
HTH, HAND


--
Free gmail invites

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.

Re:Get Involved & Protest

[macdaddy]

Colored? What part of America do you live in and what year is it?

Exactly!

[Mordaximus]

If corporations have the same rights as citizens, why don't they have the same responsibilities?

Re:You laugh but...

[nacturation]

A question: Has anyone put together an Open Source voting protocol?

I think Diebold has. One line of code from their source explains it all...

if (vote = GW_BUSH) {

The REAL problem here...

[Xaroth]

...isn't Diebold at all. It's those pesky "activist judges" who want to go allowing the undesirables to vote.

What'll those crazy unelected judges do next?! If we're not careful, soon they'll be "enforcing the Constitution" or some other such nonsense.

(For the humor impaired, this is not a troll.)

No penalty of perjury

[Guanix]

This issue was covered in a Slashdot interview with a DoJ lawyer a while ago. DMCA does not require the statements about infringement in notices to be made under penalty of perjury. Only the statement that the issuer is a representative of the copyright holder is made under penalty of perjury.

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.

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.

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.

Actually, they do know

[Anonymous Coward]

CNN:
http://money.cnn.com/2004/08/30/technology/e lectio n_diebold/
http://www.cnn.com/2004/LAW/09/28/rama sastry.votin gmachines/

MSNBC:
http://msnbc.msn.com/id/5937115/

IMHO this issue has gotten decent (but not perfect) coverage in the mainstream media. Having said that, they do not go much into the technical details, but look at their audience. While I agree that it is crappy that thinks like the Kobe trial get more coverage, to say that the 'Mainstream media still doesn't know' is inaccurate.

Re:That's subtly hilarious.

[csimpkin]

I think that the code in the curly braces would be done depending on what the value of GW_BUSH represents. In C/C++ an assignment is essentially a function call that returns the new value of the variable being assigned to. That is handy for things like multiple assignments in a single statement (ie a = b = c).

Slashdot did what Diebold/DCMA couldn't

[Greg@RageNet]

Looks like those documents are gone now!

Guess Diebold should have just posted to slashdot to get the documents removed from the internet.

Perhaps slashdot should consider a [cache] link for each link since this is such a regular occurence.

-- Greg

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.

Get the memos from the Swarthmore students

[skyfaller]

As one of the Swarthmore students who was a plaintiff in the lawsuit, I'd like to invite you to browse/download the memos from our website. This in fact is the website that Diebold scared Swarthmore into shutting down, which was the basis for our lawsuit. We were able to re-post the memos after we filed our counternotification

Also, if you are a student, or you know students who are interested in copyfighting/freedom of speech, please head on over to FreeCulture.org, an international student movement for free culture :-)

Actually...

[temojen]

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.

All you have to do is plug it in, assuming you're using some variant or UNIX/BSD/Linux.

The real hack with your system would be making it not possible to figure out how someone voted by corellating the vote log and the elector log (who voted already).

The problem with touchscreen voting is that the voter has no way of knowing the vote they entered is the vote that was recorded.

If your state has trouble figuring out how to run a free and fair election, Elections Canada can help.