I definitely picked the wrong time to take a nap today. When I woke up, I had a message on my cellphone from Wired News (Diebold Loses Key Copyright Case), and a bunch of IMs congratulating me waiting on my desktop! Sorry I missed your call Kim Zetter! The article looks fine anyway :-)

Judge Jeremy Fogel handed down his decision today that:

1. Publication of some [and possibly all] of the contents in the e-mail archive is lawful
“Even if Diebold is correct that some individual emails may contain only proprietary software code or information concerning Diebold’s voting systems and thus is subject to copyright protection, there nonetheless is no genuine issue of material fact that publication of some of the email archive does not amount to copyright infringement. [...] Significantly, Diebold does not identify which of the more than thirteen thousand emails support its argument [that some of the e-mails are copyright protected].” Sounds a little like SCO, doesn’t it?

2. Diebold violated section 512(f) of the DMCA.
* [T]he 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 clearly 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…
* The EFF remarks that “This makes the company the first to be held liable for violating section 512(f) of the Digital Millennium Copyright Act (DMCA), which makes it unlawful to use DMCA takedown threats when the copyright holder knows that infringement has not actually occured.”
* Our lawyer, Jennifer Granick suggests that the core of the case is this: A party is liable if it “knowingly” and “materially” misrepresents that copyright infringement has occurred. “Knowingly” means that a party actually knew, should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations. David Price, one of my fellow interns at the EFF this summer, agrees.

The court didn’t give us a complete victory, but they basically ruled in our favor on all the important, precedent setting stuff, as far as I can tell. All of my EFF homies are celebrating. Cory Doctorow says, “I love my job.” Jason Schultz says, “Copyright abusers beware!” I say, “Rock on!”

This entry was posted on Friday, October 1st, 2004 at 2:36 am and is filed under FC.o News. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.