Day Nine, Oct. 29: The following is a statement by Why War? member Micah White, a senior in philosophy and a minor in interpretation theory at Swarthmore College in Swarthmore, Pa.:

Diebold can’t win! Each cease and desist order is simply met with more mirrors. We are willing and able to continue this campaign until the 2004 presidential elections. We will not allow Diebold’s faulty voting machines to replace democracy.

Why War? has now received a second cease and desist letter (first letter, second letter). Diebold’s use of the DMCA is absurd and their actions are irrelevant. Nearly 100,000 people have now read this website. We estimate that at least 30,000 people have downloaded the entire collection of 13,000 memos directly from just three of the mirrors above. The memos are on peer-to-peer file trading systems. They are in Freenet.

Diebold is, by its corporate nature, providing proof for the suspicions of millions of people world wide who are now beginning to hear about this controversy. Diebold, we will not stop until there is an open examination of your misdeeds. (Will they put that line in their next cease-desist?)

What will Diebold do when they cannot stop the movement from posting their memos? How will they retailiate?

The response thus far has been amazing. If Why War? doesn’t respond immediately to your e-mail we apologize, but we do need your mirrors. Directions are available.

Day Eight, Oct. 28: Amherst and MIT have received cease-desist letters (copy of MIT cease-desist letter). New mirrors are now up at UNC, Duke, Berkeley, NCSU and U Penn.

Diebold has publicly admitted that leaked memos do not meet DMCA standards for copyright infringement. In the Associated Press article, a Diebold representative declares:

... the fact that the company sent the cease-and-desist letters does not mean the documents are authentic — or give credence to advocates who claim lax Diebold security could allow hackers to rig machines.

"We're cautioning anyone from drawing wrong or incomplete conclusions about any of those documents or files purporting to be authentic," Jacobsen said.

Ernest Miller explains that the DMCA requires that documents be authentic; if the documents aren’t authentic, it isn’t copyright infringement. Our position is that even if the memos are authentic (which we believe they are, or Diebold would be pursuing a libel campaign), they are not copyright infringment as they are covered under DMCA fair use guidelines.

Since some of you have been asking, yes, Swarthmore College is still enforcing its policy of cutting off network access to students who link to information about the memos (or the memos themselves). There have been many discussions of this absurd policy — see, for instance, LawMeme’s analysis — and we appreciate the letters that are being sent to Dean Gross and The Phoenix (e.g. Seth Finkelstein’s). We hope that by expanding to other colleges and universities we can broaden the campaign while minimizing the impact of our own institution’s refusal to take a stand. (If other educational institutions encounter such policies, this script may be of help.)

Day Seven, Oct. 27: The movement is winning. The story is spreading (Associated Press). Diebold’s actions are being thrust into the light. How long can they pursue the sepression of evidence that links them directly to election fraud? Every lawsuit is simply another admission of guilt. Thus, we are pleased to announce that students at Indiana University, Harvard, and Berkeley have now joined this campaign against Diebold.

Today Andrea Foster authored an excellent article about this battle in the Chronicle for Higher Education. She writes:

[A spokesperson] said Diebold will continue to send copyright-infringement notices to Internet service providers that host the company documents, including the four other institutions — the Massachusetts Institute of Technology, Purdue University, the University of Southern California, and the University of Texas–Pan American. The materials were first obtained by Bev Harris, who is writing a book about modern-day ballot-tampering. According to published accounts, she found the materials on an unprotected Web site while doing a Google search.

Why War? asks that the movement call their bluff. Together, we can create a permanent, public, and easily accessible location for these memos. Those unable to mirror should use their talents in other ways. We need people to be deep-reading these memos and sharing exerpts. Others need to be calling their election officials and demanding that they address your concerns (one request could be this bill). And, of course, others need to be sharing with us all how to short sell Diebold’s stock so that when its price decreases the movement will prosper. Investors, now is your chance to join the struggle.

Day Six, Oct. 26: Three additional schools have been added to the list. There are now eleven .edu mirrors.

Day Five, Oct. 25: Students from four more universities, along with a second mirror at MIT, have joined the campaign.

Day Four, Oct. 24: Students from four American universities have joined the civil disobedience: MIT, USC, Purdue and the University of Texas–Pan American. Check out Black Box Voting for a startling expose on Diebold’s connection to the debacle in Florida. This is from the individual who broke the whole story about Diebold.

A visitor wrote an e-mail of support and noted:

While doing some research about electronic voting and the Diebold machines in particular, I came across this story alleging widespread vote skimming by Diebold systems in the recent California Recall election.

I think these allegations merit wider distribution and further investigation. It is important to note that these allegations include Diebold optical scan results, allowing for the possibility of a manual recount to substantiate or refute the claims made.

More information is available here.

October 22, 2003

Recipient Information:
[Private]
Diebold, Incorporated
Walker & Jocke
Medina, OH, 44256, USA

Sent via: email and U.S. mail
Re: Diebold’s Copyright Infringement Claim

Dear [Private]:

The Electronic Frontier Foundation represents the Online Policy Group (OPG), a non-profit Internet service provider. Please provide all future correspondence on this issue to us. After review of your letter of October 10, 2003, to William Doherty, OPG respectfully declines to remove the IndyMedia pages you reference therein.

First, OPG is merely providing co-location to IndyMedia, which in turn is only providing hyperlinks to materials you claim infringe Diebold copyrights. In other words, OPG does not host the Diebold materials and neither does IndyMedia. There is merely an address for the information on the IndyMedia website as source material for a news story. Linking is not among the exclusive rights granted by the Copyright Act, 17 U.S.C. §106, and so cannot infringe any copyright Diebold might hold. Your allegations amount to a claim of tertiary liability; copyright law does not reach parties so far removed from a claimed infringement.

Second, the postings themselves are plainly fair use, not infringement. As the Copyright Act provides, "the fair use of a copyrighted work ... for purposes such as criticism, comment, news reporting, ... or research, is not an infringement of copyright." 17 U.S.C. § 107. IndyMedia is a news organization whose use of these links gives background to its discussion of the controversy surrounding e-voting. We understand that the linked-to material contains internal memoranda concerning Diebold’s electronic voting machines, including admissions by Diebold staff of errors, difficulties, bugs and other problems with the machines and software. We further understand that IndyMedia linked to these memoranda as part of news reportage about the risks of election fraud or erroneous election results that might arise from use of Diebold’s voting machines.

The First Amendment plainly protects speech about this very essence of our democracy -- the right to a free and fair election. Thus, even if Diebold has an enforceable copyright in the documents, their reposting by others serves the public interest and would be deemed fair and non-infringing on all four factors of the fair use analysis: 1) The purpose and character of the use is to inform public discussion and political debate on a matter core to American democracy, the functioning of our electoral system. As a news agency, IndyMedia should be able to link to its primary sources. 2) The nature of the work is (presumably) factual and thus less protected. 3) The documents do not appear to embody any substantial expressive work. 4) Most importantly, the posting does not compete with Diebold in any current or potential market – if it cuts into sales of e-voting equipment, it does so only because Diebold’s own statements have raised concerns about the machines’ security.

Finally, it appears you are harassing numerous ISPs with these frivolous demand letters, misusing claimed copyright to interfere with numerous subscribers’ contracts for Internet service. You may wish to consider the risk of countersuit at which this puts you and your client.

Please contact me directly if you wish to discuss the matter further.

Sincerely,

/s/
Wendy Seltzer

image