About a year ago, Diebold Corporation brought legal action
against a group of students and others who posted to the web an e-mail
archive that described, among many other things, potential shortcomings
in the company’s electronic voting systems.  (See this briefing by
Mary Bridges for context.)  Shortly thereafter, Diebold withdrew
its claims when faced with substantial legal opposition — primarily
mounted by public interest lawyers at EFF and Stanford’s cyberlaw
clinic — and public outcry, largely online. 

Yesterday, the EFF and Stanford’s CIS won the case of OPG v. Diebold in a particularly decisive manner.  The opinion is absolutely worth the read.  Two parts stand out in particular:

* First, the judge held, (just as Harvard’s general counsel did
in Derek Slater’s case upon internal review of roughly the same facts
here), that the students involved likely had a valid fair use
defense.  One line of the opinion, on p. 10, reads: “It is hard to
imagine a subject the discussion of which could be more in the public
interest.”  The conclusion on the fair use analysis, in
lawyer-ese, reads: “Accordingly, there is no genuine issue of material
fact that Diebold, through its use of the DMCA, sought to and did in
fact suppress publication of content that is not subject to copyright
protection.”

* Second, and strikingly: the judge held that Diebold violated section 512(f)
(scroll down to the section entitled “Misrepresentations”) of the DMCA
by filing its claims, such as the one against Derek: “…the Court
concludes as a matter of law that Diebold knowingly materially
misrepresented that Plaintiffs infringed Diebold’s copyright interest,
at least with respect to the portions of the email archive subject to
the fair use exception.  No reasonable copyright holder could have
believed that the portions of the email archive discussing possible
technical problems with Diebold’s voting machines were protected by
copyright…”  As a result of Diebold’s abuse of this
statute, the students will be awarded monetary relief, including
attorneys’ fees and costs, payable by Diebold.

Congratulations to the lawyers and to the students who stood in
harm’s way.  And to the federal district court judge for
recognizing a situation in which the essential “balance” inherent in
the copyright regime is just nowhere in sight.

(More commentary: Wendy Seltzer, Lawrence Lessig, Derek Slater, Joe Gratz).