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Newspaper's ISP did not abuse copyright law by allowing links

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Newspaper’s ISP did not abuse copyright law by allowing links

  • Diebold lost its damages claim against on-line journalists more than a year after hackers stole the company’s e-mail archive and reporters link to it on-line.

Oct. 13, 2004 — An on-line newspaper did nothing wrong in using its Web site to link to a company’s e-mail archive containing information about possible technical problems with the company’s products because the archive is not copyright protected, a federal judge has ruled.

Diebold, a manufacturer of voting machines, claimed the stolen archive was protected from use by a federal law known as the Digital Millenium Copyright Act. Diebold cited the law in defending a suit filed by the Internet provider for the on-line newspaper Indymedia. The provider sued after receiving what it said were illegal take-down notices from Diebold.

In a Sept. 30 ruling, U.S. District Judge Jeremy Fogel in San Jose wrote, “No reasonable copyright holder could have believed that the portions of the e-mail archive discussing possible technical problems with Diebold’s voting machines were protected by copyright.”

The court battle began after hackers attacked Diebold’s computer system and stole an e-mail archive in early 2003. Two Swarthmore College students, Luke Smith and Nelson Pavlosky, obtained the archive by undisclosed means and began posting it on various Web sites. Diebold sent cease-and-desist orders to individuals and Internet service providers claiming the Digital Millenium Copyright Act protected the e-mails from posting.

The law allows copyright holders to prevent unlicensed Web sites from using their copyrighted material, and gives copyright holders the right to order the sites to stop using material without a license. Abuse of this provision in the law also is punishable.

Diebold claimed the stolen e-mails sent within the company are copyrighted material, which contain “the development of Diebold’s proprietary computerized election system, as well as Diebold trade secret information, and even employees’ personal information such as home addresses and cell phone numbers.”

After Smith and Pavlosky posted Diebold’s archive on various Web sites, on-line newspaper Indymedia linked to the archive. Once the information was publicly posted, Diebold claimed individuals and Internet service providers involved were violating the company’s rights under federal law. The main claim was that the archive was inherently copyrighted material since portions of the e-mail archive contained information about technical problems with some of Diebold’s electronic voting machines.

Online Policy Group, Indymedia’s Internet service provider, believed the order violated federal law. Diebold offered that it would not sue anyone who was sent the letter if the material was removed. Online Policy Group refused to remove the material and, along with Pavlosky and Smith, sued Diebold, arguing it was abusing the law.

“This ruling means that we have legal recourse to protect ourselves and our clients when we are sent misleading or abusive takedown notices,” said Will Doherty, executive director of the Electronic Frontier Foundation told the Associated Press.

(Online Policy Group v. Diebold) EF

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© 2004 The Reporters Committee for Freedom of the Press

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