December 08, 2003

In a rather surprising development, Diebold Election Systems says it is withdrawing threats of legal action against dozens of web sites and ISPs that have posted copies of the company's internal email and documents "liberated" from their servers in recent months. Diebold said it would send letters to the ISPs retracting demands that they take down the documents.

The move came as a result of a lawsuit filed against Diebold by two college students and a non-profit ISP, with pro bono representation from the EFF and the Center for Internet and Society Cyberlaw Clinic at Stanford Law School.

The suit charges the company with misusing the Digital Millenium Copyright Act (DMCA) to staunch damaging revelations about grievous security problems and violations of election laws involving their electronic voting software and equipment. Diebold e-vote products are currently used in 37 states.

Diebold representatives announced the new policy in a conference call with an attorney from the EFF and US District Judge Jeremy Fogel, who is presiding in the case. No explanation has been given by Diebold, which is telling the press only that "We've simply chosen not to pursue copyright infringement in this matter."

Although Diebold spokespersons have been quoted in the media, Diebold's web site makes absolutely no mention of the change in policy. Not even a press release is posted.

While Diebold's unilateral move was greeted with pleasure by the litigants, they will continue forward with the suit. They are seeking a formal ruling that posting the internal documents does not violate copyright laws, as well as monetary damages to be paid to those targetted by Diebold's legal threats.

Judge Fogel is expected to rule on the case in February. Diebold says it hopes to negotiate a settlement before then, but given the litigants' view of the importance of the suit this seems highly unlikely.

Diebold spokesman David Bear told the press that no one should interpret the move as a sign that the DMCA did not apply in this case. However, Diebold has been playing semantic games on the issue all along. While the company has claimed the documents revealed proprietary information that would benefit its competitors, it also maintained that trying to stop their distribution on copyright grounds did not constitute acknowledgement that the documents are genuine.

Diebold declined to address widespread questions about how it could threaten copyright lawsuits over material that is not actually theirs. Fancy that.

[Read the source...]