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October 04, 2004
False Accusation Under the DMCA
In Online Policy Group v. Diebold, the Northern District of California court found that false accusation of copyright infringement is a violation of the Digital Millennium Copyright Act (DMCA), even if no legal action is taken by the accuser.
The manufacture of electronic voting machines, Diebold, Inc., was found liable for violating the DMCA because of its false accusations of copyright infringement. Diebold is the first company to be found liable under § 512(f) of the DMCA. This section prohibits the use of threats when the copyright holder knows that there is no infringement.
Internal documents revealing flaws in voting machines were leaked from Diebold. College students obtained the documents and posted them through e-mail and hyperlink. Diebold sent cease and desist letters to the ISPs for hosting the documents, claiming copyright infringement. The ISP asserted that free speech was at issue and refused to take the documents off their servers.
Diebold did not bring suit. Rather, it defended a suit for injunctive, declaratory, and monetary relief. However, Diebold violated the DMCA because it knowingly, materially misrepresented that the works were protected by copyright. Diebold did not have the copyright protection it claimed. According to the decision, Diebold was unable to show any copying of portions covered by copyright. While this sounds like a problem of proof, the court found other reasons for the decision. Some of the excerpts fell within the fair use doctrine. The court stated:
The purpose, character, nature of the use, and the effect of the use upon the potential market for or value of the copyrighted work all indicate that at least part of the email archive is not protected by copyright law. The email archive was posted or hyperlinked to for the purpose of informing the public about the problems associated with Diebold’s electronic voting machines. It is hard to imagine a subject the discussion of which could be more in the public interest. If Diebold’s machines in fact do tabulate voters’ preferences incorrectly, the very legitimacy of elections would be suspect.
The court additionally found Diebold had no commercial purpose for the information. Further, the court stated that "the goal of copyright law is to protect creative works in order to promote their creation."
I'm not quite sure what to make of this decision. On one hand, it seems to further the policy goals of copyright. But, it seems unfair to the company. Someone took secret information, and Diebold had no power to stop the information from being widely disbursed. Maybe there was a cause of action under a tort theory, but it appears that the bad actor is unknown. I guess my mother was right when she said "life's not fair." Diebold learned the hard way that even when treated unfairly, it's a bad idea to claim copyright protection when it isn't there.
10-5-2004 Update: Donna Wentworth over at copyfight posted a link to an in-depth story of the issue at news.com. The linked story has some of the juicy details.
Posted by at 09:45 AM.
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