Online Policy Group

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 essentially "because there was no commercial harm and no diminishment of value of the works" in their republication. Additionally Diebold was found to have 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.

Sometime in the spring of 2003 an unknown hacker broke into Diebold computers and obtained a large portion of their email archives, which was posted to various web sites. In an effort to quash the dissemination of information about security flaws in its voting machines, Diebold had sent dozens of DMCA takedown notices to various ISPs, all of which complied, except for OPG. Diebold sent takedown notices not only to sites actually storing the information, but also to those that merely linked to it. More specifically, Diebold sent DMCA notices to Swarthmore College, the ISP where the two students Nelson Pavlosky and Luke Smith had posted the 15,000 emails on their Swarthmore Coalition for the Digital Commons web page. Diebold also sent notices to the Online Policy Group, the ISP for an IndyMedia site linking to Pavlosky & Smith's web page, and also to Hurricane Electric, OPG's upstream provider. After Swarthmore complied and removed the material, Pavlosky, Smith and the OPG sued Diebold, "asserting the company’s accusation of infringement “was based on knowing material misrepresentation,” an actionable claim under a provision of the DMCA (17 U.S.C. 512(f)) and, furthermore, “interfered with [the] contractual relations” between the students and their Internet service providers". Although Diebold withdrew their DMCA letters after a media backlash, the plaintiffs decided to pursue Diebold in court; before the trial, EFF's legal director Cindy Cohn said that "We think it’s important that the court make it clear that if you misuse the powers the DMCA has granted copyright holders, there are going to be serious consequences."

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