Diebold drops takedown orders
BY PAUL GOLDSMITH-PINKHAM

In response to litigation brought by two Swarthmore students, Diebold, Inc. has ceased asking individuals at universities across the country, including Swarthmore, to remove internal company e-mails from public display on Web sites.

But Luke Smith ’06 and Nelson Pavlosky ’06 said they plan to continue their litigation against the electronic voting machine manufacturer however in the hopes of setting a precedent against filing what they say are baseless copyright infringement claims.

The company recently received a damaging review in a report by the state of Maryland, which argued that potential security issues were serious enough that Diebold software should be rewritten prior to use in any actual elections.

“We were genuinely surprised at the basic level of the exploits,” author Michael Wertheimer said. Researchers were able to cast multiple votes, change vote totals and unlock the machines in “approximately 10 seconds,” according to The New York Times.

Because the machines keep no paper records of the voting totals, such tampering could go unnoticed, the study’s authors noted.

The documents over which Diebold and the Swarthmore students are engaged in litigation contain evidence of similar security issues from 2002 and 2003. In one instance, a Diebold machine had computed 16,022 negative votes against presidential candidate Al Gore in a Florida precinct. Other e-mails advised company representatives to “fake it” when demonstrating security protections to elections officials.

Economics professor Mark Kuperberg said he understood why Diebold chose not to engage in a lawsuit with a group of students. By ping the case, he said, “they haven’t lost the ability to bully” other Web sites into removing the memoranda.

Pavlosky said that in pursuing their suit against the company, he and Smith are attempting to explicitly forbid Diebold from being able to file claims against other Internet hosts of this information. He remained firm in his belief that the files, copies of internal Diebold e-mails between support and engineering staff, are not material subject to copyright, and that the Swarthmore Coalition for the Digital Commons and Why War? were within their rights when they posted and distributed the material online.

The case began when Why War? posted files on its Web site, why-war.com, that had been taken from a Diebold server that left unprotected by password. In response to the posting of the memos, Diebold sent takedown requests to the group’s Web hosts, claiming the group was engaging in copyright infringement.

In the meantime, however, the memoranda had been distributed to individuals at scores of other colleges and universities, including several outside the United States.

Under U.S. law, material can be defined as either copyrighted or free-use. Copyrighted material can be reproduced for a consumer’s personal use and can be excerpted, but it cannot be redistributed in total. Free-use material has no restrictions on distribution.

This type of material, Smith said, promotes public discourse, and that is the students’ main goal. They argue that unlike pirating a movie or CD, the memoranda themselves have no market value, and Diebold’s position as voting machine contractor in 37 states makes the information important enough for public distribution. Because the legal distinction between copyrighted and free-use material is vague, it is left to courts to decide what type the documents constitutes.

The next court date for the students’ case is Feb. 9, according to Smith and Pavlosky.