Editor’s note: This article was initially published in The Daily Gazette, Swarthmore’s online, daily newspaper founded in Fall 1996. As of Fall 2018, the DG has merged with The Phoenix. See the about page to read more about the DG.
US District Court Judge Jeremy Fogel ruled largely in favor of Swarthmore students Nelson Pavlosky ’06 and Luke Smith ’06 last Thursday, finding that “[t]he fact that Diebold never actually brought suit against any alleged infringer suggests strongly that Diebold sought to use the [Digital Millennium Copyright Act’s] safe harbor provisions–which were designed to protect ISPs, not copyright holders–as a sword to suppress publication of embarrassing content rather than as a shield to protect its intellectual property.” While Fogel did not grant every request made by the plaintiffs, Pavlosky commented that “[t]he denied portions are not important either for the outcome of the case or for setting precedent…Our claim that Diebold interfered with our contract for Swarthmore for internet service was tenuous and not really important…[Fogel] said that the punishments under 512(f) [the relevant section of the DMCA] were sufficient to cover any of Diebold’s DMCA abuse. This is fine, since the ruling on the DMCA, a federal law, is more important and interesting than any ruling on California state law.” As a result of the case, a precedent has been set limiting the use of the copyright infringment provisions of the DMCA.
As previously reported in the Gazette, Pavlosky and Smith posted a series of internal Diebold memos that identify security flaws in the company’s widely used voting machines on the Swarthmore Coalition for the Digital Commons website last year. At the time the memos were available on a number of internet sites. It is not known for certain how the memos initially entered circulation, whether obtained by illegal means or leaked by an employee. In an attempt to suppress the circulation of the memos Diebold used copyright infringement provisions of the DMCA to get ISPs hosting the memos to shut down websites on which they were posted. The Electronic Frontier Foundation filed a lawsuit, on behalf of Pavlosky, Smith, and the Online Policy Group, another ISP hosting the memos, against Diebold for improper use of the copyright provisions of the DMCA. Diebold later withdrew their legal threats against the students, but Pavlosky and Smith continued in their lawsuit in order to ensure a ruling on the use of the DMCA provisions. With Thursday’s ruling, Pavlosky and Smith obtained their desired result.
Pavlosky sees the case as an “important precedent that puts some teeth into section 512(f) of the Digital Millennium Copyright Act, which sets strong penalties for people [and] corporations who abuse the powers that the DMCA gives them.” While he still finds the content of the DMCA objectionable, Pavlosky noted that this precedent-setting decision makes it “a slightly more balanced and less oppressive law.”
Free Culture Swarthmore, the organization formerly known as the Swarthmore Coalition for the Digital Commons, will be hosting a victory party shortly after fall break. As to the meaning of the case for the future Pavlosky commented that it “demonstrates the ridiculous, oppressive lengths to which copyright has extended, and…the need for pro bono legal representation from organizations like the Electronic Frontier Foundation, which provided some of our lawyers,” adding “[t]hose who believe that this defense of our [First] Amendment rights was important, please donate to the EFF to make sure that our rights continue to be preserved in the future!”
