Miscellaneous Homework 9: Copyright, Free Speech, Censorship, and Fair Use: The Diebold Case

Anyone can sue anybody for anything. That doesn't make it right. Samuel A. Rebelsky

The Bill of Rights protects our freedoms. We protect the Bill of Rights. Diebold, Incorporated

Summary: We will use a breaking controversy, The Diebold Case, to return to a number of key topics from tutorial. You must ground your knowledge of the case in the case and prepare a short statement about your perspective on the matter.

Purposes: (1) To remind you that the issues we are discussing ni tutorial appear regularly; (2) to provide you the oportunity to reconsider the use of intellectual property laws in ways that appear to oppose public interest; and (3) to revisit the relationship of copyright and hypertext links.

Assigned: Thursday, 30 October 2003

Due: noon, Monday, 3 November 2003

Background:

One of the key topics we have visited in our consideration of intellectual property law is the ways in which IP law is used by copyright owners to promote activites that are difficult to view as benefiting society. For example, we have suggested that it is difficult to understand how society benefits when a copyright owner who chooses to restrict access to works. In a more narrow sense, we considered how copyright has been used as a tool for censorship (and yes, I do still hope that you'll be able to consider Mr. Osgood's essay on this topic).

A recent controversy provides an interesting case study of the possible conflict between the interest of copyright holders and the interest of the public. The controversy has to do with a set of internal documents from the Diebold corporation that have been made available on the World Wide Web. Diebold manufactures many of the modern computerized voting machines used across America (and beyond). These documents reveal what many critics deem serious security flaws in the system. Diebold has sent a number of cease and desist letters to colleges and ISPs that host computers which provide these internal documents.

A number of colleges have significantly capitulated to these demands. For example, soon after the documents were leaked, a few students at Swarthmore put the documents on their Web site. As soon as Swarthmore received a cease and desist letter from Diebold, it removed the students' access to the Web. But Swarthmore did not limit its actions to removing accounts. In fact, it informed all Swarthmore students that simply linking to the documents on a non-Swarthmore site was a violation of their computing policies and would result in account termination.

This limitation on linking also reflects on our early discussions of the relationships between linking and intellectual property law. Hence, it provides us with the opportunity to revisit that question from a new context and with additional background.

Assignment, Part 1

Familiarize yourself with the Diebold Case. You will find the following resources useful as you consider the case:

http://www.why-war.com/features/2003/10/diebold.html

The Why War? archive on the Diebold case.

http://www.cs.grinnell.edu/~laiu/lists/

A local repository of the Diebold memos.

http://www.diebold.com/dieboldes/

Diebold Election Systems

http://www.freedom-to-tinker.com/archives/000462.html

Freedom to Tinker: Swarthmore Bans Indirect Links

Assignment, Part 2

Write a short statement about some aspect of the Diebold case (e.g., Swarthmore's attempt to limit deep linking violates academic freedom because ..., Although Why War has claimed that publishing the Diebold documents falls under the fair use doctrine of U.S. copyright law, a careful analysis of that doctrine reveals ...).

Email me the statement by noon on Monday, 3 November 2003.

Note I realize that most of you will be occupied with your research papers. Hence, you should not spend an inordinate amount of time on this assignment. An hour or so should suffice.

Appendix: Additional Sources

Mr. Stone has provided us with a broad list of useful sources. Explore as many or as few as you would like.

Anonymous. Link to the full stash of Diebold memos ... October 29, 2003. http://www.indybay.org/news/2003/09/1649419_comment.php.

Anonymous. Targeting Diebold with electronic civil disobedience. http://www.why-war.com/features/2003/10/diebold.html.

Anonymous. Why war? http://www.why-war.com/.

Blaha, Scott, and and Khoo, Evelyn. SCDC to take legal action against Diebold; Why-War? continues to host memos. October 23, 2003. http://www.sccs.swarthmore.edu/org/daily/archive/fall_2003/20031023.html#n1.

Burke, Timothy. Caveat emptor. October 28, 2003. http://www.swarthmore.edu/socsci/tburke1/perma102803.html.

Felten, Ed. Swarthmore students re-publish Diebold memos. October 23, 2003. http://www.freedom-to-tinker.com/archives/000461.html.

Felten, Ed. Swarthmore bans indirect links. October 24, 2003. http://www.freedom-to-tinker.com/archives/000462.html.

Finklestein, Seth. Diebold Election Systems memos, DMCA, and copyright infringement. October 23, 2003. http://sethf.com/infothought/blog/archives/000451.html.

Fitting, Matthew. College removes Diebold memos. October 23, 2003. http://phoenix.swarthmore.edu/2003-10-23/news/13346.

Foster, Andrea. Swarthmore shuts down Web sites of students publicizing company's voting-machine memos. October 27, 2003. http://www.why-war.com/news/2003/10/27/swarthmo.html.

Grimmelmann, James. How direct is too direct when it comes to hyperlinks? October 26, 2003. http://research.yale.edu/lawmeme/modules.php?name=News&file=article&sid=1262.

Hales, Paul. `Civil disobedience' campaign targets Diebold. October 22, 2003. http://www.theinquirer.net/?article=12261.

Kohno, Tadayoshi; Stubblefield, Adam; Rubin, Aviel D.; and Wallach, Dan S. Analysis of an electronic voting system. July 23, 2003. http://avirubin.com/vote.pdf.

Konrad, Rachel. Diebold warns on electronic voting papers. October 27, 2003. http://seattlepi.nwsource.com/business/aptech_story.asp?category=1700&slug=Electronic%20Voting%20Leaks.

March, Jim. Jim's DIEBOLD PAGE (or: `how to hack an election'!). October 24, 2003. http://www.equalccw.com/voteprar.html.

Miller, Ernest. Civil Disobedience to Diebold Moves onto P2P Networks. October 29, 2003. http://importance.typepad.com/the_importance_of/2003/10/civil_disobedie.html.

Miller, Ernest. Diebold filing false notice-and-takedown claims? October 27, 2003. http://importance.typepad.com/the_importance_of/2003/10/diebold_filing_.html.

Pavlovsky, Nelson, and Smith, Luke. SCDC statement on hosting of Diebold memos. October 23, 2003. http://scdc.sccs.swarthmore.edu/.

Russell, Don. Swarthmore groups told to nix links. October 23, 2003. http://www.philly.com/mld/dailynews/news/local/7080760.htm.

Seltzer, Wendy. EFF supports online policy group's resistance. October 22, 2003. http://www.chillingeffects.org/responses/notice.cgi?NoticeID=912.

Slater, Derek. Copyright and the University. October 27, 2003. http://blogs.law.harvard.edu/cmusings/2003/10/27#a448.

Tomorrow, Tom. This modern world: Something truly terrifying. October 28, 2003. http://www.workingforchange.com/article.cfm?itemid=15882.

Zetter, Kim. Students fight e-vote firm. October 21, 2003. http://www.wired.com/news/business/0,1367,60927,00.html.