Derek Slater, a Berkman Center researcher, achieved a victory today when Harvard’s general counsel’s office told him that they would not hold against him, for the purposes of its Digital Millennium Copyright Act (DMCA) policy, his posting on the campus network certain information with respect to voting machines. In response to a “cease and desist” letter from lawyers for Diebold, Incorporated, alleging infringement of copyright, sent to him via Harvard as his ISP, Derek pushed back to the university. In his own defense, Derek asserted “fair use” under copyright law (17 USC Section 107). Harvard agreed today that Derek had a reasonable claim in this regard and told him that the university would not hold this incident — at least based on the facts so far — against him for the purposes of its policy of disallowing network access for reason of infringement of copyright.
I wholeheartedly support Derek in his assertion of a fair use defense in this matter for three reasons. First, I think it is inappropriate to use the copyright law, and particularly the DMCA’s (17 USC Section 512), as a means to stifle political speech of this sort. Second, I think that every university has a responsibility to factor in its academic role, as well as its role as an Internet Service Provider under certain United States laws such as the DMCA, when forced to take up a matter of this sort and when determining how to respond when its students are accused in this regrettable manner. Finally, I am convinced that Derek has a strong fair use defense and that he ought to be supported in his assertion of that defense.