Online Policy Group v. Diebold, Inc.

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337 F. Supp. 2d 1195 (N.D. Cal. 2004)

OPG created the first caselaw applying 512(f) of the DMCA to remedy abusive copyright claims under the DMCA.

The defendants Diebold, Inc. and Diebold Election Systems, Inc. manufactured electornic voting machines that contained numerous verification and reliability problems. Id. at 1197. In 2003, the companies' entire email archive was leaked online. The archive included emails from Diebold employees admitting to problems with the machines. Id. Two Swarthmore college students posted the archive to several websites, and an online newspaper IndyMedia wrote articles about the emails and linked to the archive. Id. at 1197-98.

Diebold sent several cease and desist letters to various ISPs, including Swarthmore, IndyMedia's host Online Policy Group, and OPG's ISP. Id. at 1198. The students and OPG sued Diebold for declaratory, injunctive, and monetary relief. Id. at 1198-99. The Court found the declaratory and injunctive claims moot because Diebold promised the court it would not send any more cease and desist letters, but granted the plaintiff's summary judgment motion for damages and fees under DMCA 512(f), which makes it unlawful to use DMCA takedown threats when the copyright holder knows that infringement has not actually occured. Id. at 1202-04.

The court determined that Diebold, Inc. knowingly misrepresented that the plaintiffs had infringed the company's copyrights because at least a portion of the archive was lawful fair use. Id. at 1203-04. Applying a fair use analysis, the Court found that all four factors favored fair use. Id. at 1203. The purpose of discussing the legitimacy of voting machines was of the highest public interest, and there was no hint that the plaintiffs sought to gain commercially from publishing or linking to the archive nor that there was any harm to a market, if a market in fact existed for Diebold's internal emails that it never intended to publish. Id. In his decision, Judge Jeremy Fogel wrote, "No reasonable copyright holder could have believed that the portions of the email archive discussing possible technical problems with Diebold's voting machines were proteced by copyright." Id. at 1204.

Diebold subsequently agreed to pay $125,000 in damages and fees.[1]

Documents available at EFF's case page