News

Students file lawsuit against Diebold

In print | November 6, 2003

Nelson Pavlosky ’06 and Luke Smith ’06 said Monday that they would file lawsuit against voting machine – maker Diebold, Inc., in a California federal court. Their decision has moved them into a leading role in a situation that has spread across college campuses and Internet Service Providers (ISPs) nationwide.

In a mutual effort, the Electronic Frontier Foundation, a non-profit legal group, and Stanford Law School Center for Internet and Society will file suit jointly against Diebold on behalf of the two sophomores. The suit will attempt to enjoin Diebold from claiming copyright infringement over more than 13,000 memos obtained from a publicly accessible internal company Web site and posted on the Web site of Why War?, a Swarthmore student group.

The lawsuit claims the memos fall under fair use. This would mean their circulation was not subject to existing copyright laws, most notably the Digital Millennium Copyright Act (DMCA). If successful, the suit would stop Diebold from sending any more takedown requests to ISPs, such as Swarthmore’s computer network, that hosted the memos. The suit claims that using such requests without legal justification constitutes fraudulent behavior on Diebold’s part.

Under safe harbor guidelines in the DMCA, Diebold can issue takedown requests without any proof as to how the materials in question constitute copyright infringement. If the ISP that receives the request wishes to remain legally protected, it must immediately take down the materials.

The voting machine – maker is responsible for machines used by about 52 percent of polling places in the United States.

The students, both members of the Swarthmore Coalition for the Digital Commons, defined the issue as one of rights. “We’re not seeking monetary damages or anything,” Smith said. “We just want our free speech back.”

Since it sent a takedown request to Swarthmore two weeks ago, the company has sent seven more to institutions that include Harvard and the Massachusetts Institute of Technology.

The official lawsuit will go forward Nov. 17, until which Diebold may send more takedown requests if it wishes.

Dean of the College Bob Gross ‘62 praised the students’ action. He said the college itself was trying to question both Diebold’s use of the DMCA and the claims Diebold made in the takedown request it sent to Swarthmore two weeks ago.

SCDC will launch a counter-notification in addition to the lawsuit, Smith said. Such a notification would allow Diebold 14 days to offer proof that the memos do, in fact, fall under existing copyright law and that their circulation is illegal. Otherwise, the ISP in question, in this case Swarthmore’s network, would legally be allowed to host the memos.

Regarding the decision to file this suit specifically, however, Smith said, “We needed to clear up all this uncertainty. We needed to make it clear that we had the right to do this [circulate the memos].”

In a statement released last Friday, the college said encouraging students to question Diebold and its claims was in keeping with its mission of imparting to students a need for socially responsible citizenship. It also defended its decision to take down student users’ machines that provided links to Web sites that provide the memos, most notably Why War?’s site. Citing a 1999 federal district court ruling, the college said that case “suggested” that providing such links “may be construed as contributory copyright infringement.”

President Al Bloom was also quoted in the statement. The college “is deeply proud of its students’ resolve to act on behalf of an open and fair democracy,” he said, “and believes that the finest teaching of civic responsibility encourages students to act on their commitment to a better society by first seeking approaches within the law to reach socially significant goals, before considering civil disobedience.”

Gross added that Swarthmore still held two conflicting priorities on the issue: to support students who protest Diebold’s actions and to protect itself legally.

“We would like to find a way to make sure that the documents get appropriate circulation,” he said.

Micah White ‘04, a member of Why War?, said that group’s involvement might soon decrease significantly. Until this week, Why War? considered itself to be spearheading the movement to spread the memos. As of yesterday, however, 54 institutions of higher education and one high school had users hosting the documents.

“I think we did our part,” White said, referring to the group’s Web site, which has carried the memos for the past several weeks and still does. “We activated 50 groups at 50 colleges in 10 days, and that’s a monumental accomplishment.”

White added that “attention should now be focused on the legal.”

Various groups at other institutions around the country, he said, have embraced the mission of spreading the memos. They hope to form a separate organization, one that would take the lead role of keeping available the memos whose circulation Why War? initiated.

The memos will remain available on the group’s Web site, www.why-war.com. Though the group’s server, which is not associated with Swarthmore, received a takedown request from Diebold in the past week, the server did not take steps to remove the memos.

Instead, the server decided that, if the links on www.why-war.com were to plain text documents rather than other links to the memos, then it would be within the bounds of the law. According to White, it plans to take no further steps.

White also continued to dismiss the college’s actions, despite the steps Swarthmore took in the last week. " I think this school is again acting just as if this were any other copyright issue," he said. “Swarthmore chose not to defend Why War? and SCDC. I hope they live up to what they’re saying [now] … but I don’t think they helped us in any way.”

Outside of the situation over the memos, Diebold itself faced more problems this week, when thousands of voters in Alameda County, Calif., voted on Tuesday using new electronic machines that Diebold had not submitted for certification as required by law. The same problem occurred last month in the state’s gubernatorial recall election.

The Oakland Tribune reported that the company had not even informed county officials of its last-minute changes to touch screen voting machines.

SCDC will host “Choosing Clarity,” a symposium on voting issues in America, on Dec. 6.