OPG v. Diebold
Encyclopedia
OPG v. Diebold, 337 F. Supp. 2d 1195
(N.D. Cal. 2004), more officially known as Online Policy Group (OPG), Nelson Chu Pavlosky, and Luke Thomas Smith v. Diebold, Incorporated
and Diebold Election Systems, Incorporated (now Premier Election Solutions), was a lawsuit involving an archive of Diebold's internal company e-mails and Diebold's contested copyright claims over them. The Electronic Frontier Foundation
and the Stanford Cyberlaw Clinic provided pro bono legal support for the non-profit ISP
and the Swarthmore College
students, respectively.
United States District Judge Jeremy Fogel ruled that the plaintiffs' publishing of the e-mails was clearly a fair use, and that Diebold had misrepresented its copyright controls over the work, putting them in violation of section 512(f) of the Digital Millennium Copyright Act
(DMCA) and leaving them liable for court costs and damages. This was the first time 512(f) had been enforced in court, and set a precedent.
, was hosting the website for SF Bay Area Indymedia (Indybay
) when a story linking to the Diebold e-mail archive was posted to Indybay. The link wasn't a direct link to the e-mail archive: upon reaching the linked page, the reader had to click another link to download the memos themselves. Diebold sent legal threats to OPG, asserting that the memos were copyrighted and that Indybay was committing tertiary infringement by linking to a link to the Diebold memos. When Indymedia and OPG refused to act, Diebold sent legal threats to OPG's upstream ISP, Hurricane Electric
(HE), effectively accusing HE of quaternary copyright infringement. This threat prompted OPG v. Diebold.
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(N.D. Cal. 2004), more officially known as Online Policy Group (OPG), Nelson Chu Pavlosky, and Luke Thomas Smith v. Diebold, Incorporated
Diebold
Diebold, Inc. is a United States-based security systems corporation that is engaged primarily in the sale, manufacture, installation and service of self-service transaction systems , electronic and physical security products , and software and integrated systems for global financial and...
and Diebold Election Systems, Incorporated (now Premier Election Solutions), was a lawsuit involving an archive of Diebold's internal company e-mails and Diebold's contested copyright claims over them. The Electronic Frontier Foundation
Electronic Frontier Foundation
The Electronic Frontier Foundation is an international non-profit digital rights advocacy and legal organization based in the United States...
and the Stanford Cyberlaw Clinic provided pro bono legal support for the non-profit ISP
Internet service provider
An Internet service provider is a company that provides access to the Internet. Access ISPs directly connect customers to the Internet using copper wires, wireless or fiber-optic connections. Hosting ISPs lease server space for smaller businesses and host other people servers...
and the Swarthmore College
Swarthmore College
Swarthmore College is a private, independent, liberal arts college in the United States with an enrollment of about 1,500 students. The college is located in the borough of Swarthmore, Pennsylvania, 11 miles southwest of Philadelphia....
students, respectively.
United States District Judge Jeremy Fogel ruled that the plaintiffs' publishing of the e-mails was clearly a fair use, and that Diebold had misrepresented its copyright controls over the work, putting them in violation of section 512(f) of the Digital Millennium Copyright Act
Digital Millennium Copyright Act
The Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...
(DMCA) and leaving them liable for court costs and damages. This was the first time 512(f) had been enforced in court, and set a precedent.
The Online Policy Group
The OPG, a free donation-based web host run by Roger Klorese, David Weekly, and Will DohertyWill Doherty
Will Doherty is the former executive director of the Verified Voting Foundation and VerifiedVoting.org and was the originator of the Election Incident Reporting System, used to detect over 40,000 problems with the 2004 U.S...
, was hosting the website for SF Bay Area Indymedia (Indybay
Indybay
Indybay is the San Francisco Bay Area Independent Media Center, an all-volunteer organization which operates a community news website, Indybay.org, and in June 2004, began publishing a free news magazine, Fault Lines.-Foundation:...
) when a story linking to the Diebold e-mail archive was posted to Indybay. The link wasn't a direct link to the e-mail archive: upon reaching the linked page, the reader had to click another link to download the memos themselves. Diebold sent legal threats to OPG, asserting that the memos were copyrighted and that Indybay was committing tertiary infringement by linking to a link to the Diebold memos. When Indymedia and OPG refused to act, Diebold sent legal threats to OPG's upstream ISP, Hurricane Electric
Hurricane Electric
Hurricane Electric is a global Internet backbone , with a specific focus on IPv6. Hurricane Electric operates datacenters in the San Francisco Bay Area, primarily within the city of Fremont...
(HE), effectively accusing HE of quaternary copyright infringement. This threat prompted OPG v. Diebold.