More letters sent to students re: Diebold

[Dave Farber <dave () farber net>]

Delivered-To: dfarber+ () ux13 sp cs cmu edu
Date: Mon, 10 Nov 2003 12:40:11 -0500
From: "Baratunde R. Thurston"

To: dave () farber net

Hi Dave,

Looks like another college student is facing threats from Diebold and his
university over the posting of "DMCA-protected" IP.


 \baratunde rafiq thurston
  comedian & writer
  www.baratunde.com
  brought to you by Kingly Companion Media, LLC

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Originally published on Monday, November 10, 2003 in the News section of The
Harvard Crimson.
http://www.thecrimson.com/printerfriendly.aspx?ref=349962

Student Accused of Violating Copyrights
By DAVID ZHOU
Contributing Writer


Derek A. Slater '05 is in trouble with Harvard for sharing copyrighted
material.
But he's not accused of using Kazaa, Morpheus or their music
industry-defying close cousins.

In fact, his copyright infringement woes don't even involve music.

Rather, Slater received a cease-and-desist letter from Harvard on Oct. 31
after posting thousands of internal documents about an electronic voting
machine manufacturer on his Harvard-hosted website.

The memos, which are widely available on the Internet, discuss software and
security flaws in Diebold Election Systems' 33,000 machines across the
country.

Diebold has claimed that the posting the documents-which were stolen by a
hacker in March 2003-is a copyright violation.

Slater said the University has disabled online access to the documents.

And Slater says he will now have to convince the University that he has not
violated Diebold's copyright or risk having a copyright violation on his
student record-two of which will result in the loss of University network
access for a year.

In its fight to have the documents taken off the Internet, Diebold is citing
the Digital Millennium Copyright Act (DMCA) of 1998, which has been used
most prominently against music sharers.

The DMCA treats universities as Internet service providers, and thus
requires them to act in cases of possible copyright infringement or risk
liability, said John G. Palfrey '94, the executive director of the Berkman
Center for Internet and Society at Harvard Law School.

Swarthmore and MIT have also removed the Diebold documents from websites of
electronic voting advocates at their institutions.

Slater said he obtained the documents from a page maintained by Swarthmore
College students.

"These documents are potentially important to our democracy and the
integrity of our voting system," he said. "It's necessary to spur debate."

But Diebold spokesperson David Bear said his company has the right to
protect its own documents.

"We reserve the right to protect that which we feel is proprietary," Bear
told The New York Times last week.

Slater and Palfrey questioned the invocation of the DMCA to force the
removal of the documents, saying Diebold was misusing the law.

"I think it's both regrettable and inappropriate to use the copyright law to
stifle this political speech," Palfrey said.

He said that the case for copyright infringement is hardly airtight against
Slater, an affiliate of the Berkman Center.

The DMCA uses four criteria to decide whether copyrighted material can be
made freely available, Palfrey said. These include the purpose of the
infringement, the nature of the material, the amount of material used and
the potential effect on the documents' market, he said.

Palfrey said that Slater's case against claims of copyright infringement are
bolstered because the documents were used in an academic and not a
commercial manner and they were factual-not creative-works. He added that
Slater did not damage their market value because Diebold never intended to
sell the documents.

"Derek has a very strong fair-use case," Palfrey said. "I think the
University should be, and is, open to students asserting their rights under
the law."

Slater said he has been consulting Law School faculty to consider options
for fighting the University's classification of the documents as copyright
violations.He said there has been no date set for a hearing, and that he was
not aware of any formal process for making decisions on copyright
infringement.

Kevin S. Davis '98, the coordinator of residential computing for the Harvard
Arts and Sciences Computing Services (HASCS), said last night be could not
comment on individual students' violations.

 

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