Diebold first 512(f) Loser

Yesterday Judge Fogel of the Northern District of California handed Diebold,
the maker of voting machines, the first bill for damages under the "knowing
material misrepresentation" clause of the notice and takedown provisions of the
DMCA (17 USC 512(f)). Diebold had sent Section 512 notices to several ISPs
requesting the takedown of a series of internal Diebold e-mails critical of its
voting machines that were published to the Internet. href="http://www.eff.org/legal/ISP_liability/OPG_v_Diebold/20040930_Diebold_SJ_Order.pdf">Judge
Fogel ruled that a) the declaratory relief that Plaintiffs wanted that the
publication was not infringement was moot because Diebold stated that it would not sue; b) publication of at least some of the e-mails was fair use and not copyright infringement; c) Diebold knowingly materially misrepresented the facts in its notices (applying an actual knowledge, reasonably should have known or would have had no substantial doubt had it been acting in good faith, standard); and, d) Diebold must pay attorney's fees and costs of the Plaintiffs. Fogel also ruled that Plaintiff's claim for tortious interference with contract was preempted, am still chewing on that.

Still, good decision. Another gem is here:

The fact that Diebold never actually brought suit against any alleged infringer suggests strongly
that Diebold sought to use the DMCA.s safe harbor provisions.which were designed to protect
ISPs, not copyright holders.as a sword to suppress publication of embarrassing content rather
than as a shield to protect its intellectual property.

Congratulations and hearty thanks should go out to the EFF, the two Swarthmore student plaintiffs who posted the archives, IndyMedia (who linked to the archives) and the Online Policy Group (a plaintiff that co-locates IndyMedia's servers).

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