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BY BENJAMIN BRADLOW

In print | October 7, 2004

After six months of waiting for a decision in a lawsuit he filed with Luke Smith ’06 and the Online Policy Group, an internet service provider, Nelson Pavlosky ’06 “was literally caught napping” when the decision was announced last Thursday.

Pavlosky and Smith had won their case against Diebold Election Systems, a manufacturer of electronic voting machines, and the company will be required to pay court costs and lawyer fees.

“We’d been waiting so long, I kind of forgot about [the case],” Pavlosky said. Upon awaking from his nap he was greeted by a message from Wired News asking for his thoughts on the decision.

Judge Jeremy Fogel of the U.S. District Court for the Northern District of California ruled in favor of Pavlosky, Smith and the OPG in their complaint against Diebold. The suit alleged that Diebold unfairly used provisions of the Digital Millennium Copyright Act to prevent them from posting a series of internal company memos that exposed flaws in Diebold’s voting machines.

The memos consisted of a series of e-mail messages between technical support personnel and sales representatives at Diebold discussing problems with their machines. The messages seemed to advocate Diebold representatives falsify security demonstrations for elections officials, as well as outlining security flaws in machines which had already been implemented in election precincts around the country. As of 2003, 37 states had contracts to use Diebold machines.

When a member of the on-campus group Why War? posted the memos on the group’s Web site, Diebold threatened their ISP with a copyright infringement suit. Why War? then moved the memos to a computer on the college network, which the college disabled after receiving a similar warning from Diebold.

Pavlosky and Smith then posted the memos to the Web site of the Swarthmore Coalition for the Digital Commons, and when Diebold threatened them, they launched a civil suit against the corporation.

Lawyers from the San Francisco-based Electronic Frontier Foundation and Jennifer Granick of the Cyberlaw Clinic at Stanford University offered to represent Pavlosky and Smith free of charge.

The suit was the first to test section 512(f) of the DMCA, which stipulates that it is illegal to knowingly misuse the copyright act to try to suppress free speech, Pavlosky said.

The students were joined in their case by the Online Policy Group because they were the ISP for the San Francisco Bay Area Indymedia Web site. Micah White ’05, a member of Why War?, posted a link from Indymedia to the memos, and Diebold threatened the OPG for hosting a page that linked to the memos.

According to Granick, the decision, which she called “a victory for free speech,” has two major points.

The first is that Pavlosky’s and Smith’s “use of the Diebold memos was fair use.” The most common conception of fair use is using a small portion of a larger work for citation or review. But three other criteria for fair use are also recognized under the law: If there is a public interest in making the material available; if the material is not marketable enough that the copyright holder would be losing potential profit from the creation; or if those sharing the material are not trying to make money by sharing the copyrighted material.

The second major tenet of the court’s decision was that “the DMCA protects against false copyright allegations of copyright infringement,” Granick said.

Currently, Internet service providers are likely to acquiesce to a takedown request because under the law they are given immunity against prosecution — whereas if they allow the material to continue to be accessed, they leave themselves open to being implicated in a copyright lawsuit.

“It encourages ISPs to wimp out,” Pavlosky said.

Now, if a corporation does engage in false allegations of copyright infringement, “there’s a stick there because they can get sued and pay damages,” Granick said.

Granick argued that Diebold made the threat without having a fair claim under copyright law. “[Diebold] knew — or should have known — that it wasn’t a legitimate complaint,” she said.

The court ordered Diebold to pay lawyers’ fees along with damages. According to Wendy Seltzer, another lawyer for the case from the Electronic Frontier Foundation, the exact dollar amount of these will be argued soon. Seltzer and Cindy Cohn of the EFF joined Granick of Stanford and Alan Corn, an attorney in private practice, in pursuing the case.

The case has gained national prominence, with Pavlosky and Smith featured in articles in Mother Jones magazine and The New York Times, as well as on the Al Franken Show and National Public Radio. On Monday, they were discussed in a story on NPR’s “All Things Considered” and in an editorial in The New York Times.

Pavlosky plans to hold a victory celebration after fall break.

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