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copyright law misused to attack whistleblowers
This is from the latest EFF newsletter. You really should subscribe. It is your rights they are working to protect.
Voting for Fair Use
By Ren Bucholz
Activist
Electronic Frontier Foundation
(Note: this op-ed also appears in Silicon Valley Biz Ink)
A 19th century voting expert said that voting machines should "protect the voter from rascaldom and make the process of casting a ballot perfectly plain, simple and secret." But what if the rascal *is* the voting machine?
That question is being asked more frequently as the public learns about the risks of electronic voting (e-voting). Unfortunately, answers are hard to find. Voting companies don't release their code for public security reviews. The machines are certified in independent labs, but the reports are sealed. Election officials get to look under the hood, but they are gagged by nondisclosure agreements. The next presidential election is on the horizon, but voters are in the dark.
One thing we do know is that many e-voting machines are simply PCs. Fortunately, we understand PCs: we understand that users break them, evil-doers break into them, and sometimes they malfunction without anyone's help. Ignoring this is naive at best.
But what about unscrupulous vendors who not only ignore this, but also attack whistle-blowers with groundless legal threats?
That's exactly what Diebold Election Systems - America's largest voting machine supplier - did this September when an embarrassing email archive was published by citizen activists. In response, Diebold sent over a dozen threatening letters, forcing many Internet service providers (ISPs) to take down information about security flaws in Diebold voting machines.
Why was Diebold able to keep these important documents out of the public eye? Diebold found a surprising tool: copyright - a set of laws that is supposed to reward creativity.
At least that's what copyright used to stand for. However, since the passage of the 1998 Digital Millennium Copyright Act (DMCA), copyright has another purpose: suppressing dissent and silencing criticism. At issue is the DMCA's "notice and takedown" procedure. Under this procedure, anyone can write to an ISP claiming to be an infringed-upon rights holder and the ISP is encouraged, by a limitation on liability, to "expeditiously remove" the disputed material. No judicial review, no court order. The result is the same in almost every case: censor first, ask questions later. These tools - wrought by Hollywood lobbyists - are just as effective for companies like Diebold.
Some of Diebold's targets, however, are fighting back. Two Swarthmore College students and a San Francisco ISP (with representation from EFF and Stanford Law School) are suing Diebold for misusing copyright. We're fighting for the overwhelming public interest in the integrity of our elections through the fair use doctrine, the First Amendment's home in copyright.
Diebold is already backing down. Two weeks after our first court appearance, Diebold told the judge that it will stop sending threatening letters and withdraw its current threats. EFF continues to press its case to show Diebold, and other companies thinking of following in its footsteps, that the law has penalties for such abuses. This is the kind of signal that would give other would-be censors second thoughts.
EFF's pro bono representation of Diebold's victims helped ensure the open discussion of voting machines. With your help, we'll be back to save the day next time as well. EFF is a member-supported nonprofit. Get more information about how you can support EFF's work at http://www.eff.org.
Voting for Fair Use
By Ren Bucholz
Activist
Electronic Frontier Foundation
(Note: this op-ed also appears in Silicon Valley Biz Ink)
A 19th century voting expert said that voting machines should "protect the voter from rascaldom and make the process of casting a ballot perfectly plain, simple and secret." But what if the rascal *is* the voting machine?
That question is being asked more frequently as the public learns about the risks of electronic voting (e-voting). Unfortunately, answers are hard to find. Voting companies don't release their code for public security reviews. The machines are certified in independent labs, but the reports are sealed. Election officials get to look under the hood, but they are gagged by nondisclosure agreements. The next presidential election is on the horizon, but voters are in the dark.
One thing we do know is that many e-voting machines are simply PCs. Fortunately, we understand PCs: we understand that users break them, evil-doers break into them, and sometimes they malfunction without anyone's help. Ignoring this is naive at best.
But what about unscrupulous vendors who not only ignore this, but also attack whistle-blowers with groundless legal threats?
That's exactly what Diebold Election Systems - America's largest voting machine supplier - did this September when an embarrassing email archive was published by citizen activists. In response, Diebold sent over a dozen threatening letters, forcing many Internet service providers (ISPs) to take down information about security flaws in Diebold voting machines.
Why was Diebold able to keep these important documents out of the public eye? Diebold found a surprising tool: copyright - a set of laws that is supposed to reward creativity.
At least that's what copyright used to stand for. However, since the passage of the 1998 Digital Millennium Copyright Act (DMCA), copyright has another purpose: suppressing dissent and silencing criticism. At issue is the DMCA's "notice and takedown" procedure. Under this procedure, anyone can write to an ISP claiming to be an infringed-upon rights holder and the ISP is encouraged, by a limitation on liability, to "expeditiously remove" the disputed material. No judicial review, no court order. The result is the same in almost every case: censor first, ask questions later. These tools - wrought by Hollywood lobbyists - are just as effective for companies like Diebold.
Some of Diebold's targets, however, are fighting back. Two Swarthmore College students and a San Francisco ISP (with representation from EFF and Stanford Law School) are suing Diebold for misusing copyright. We're fighting for the overwhelming public interest in the integrity of our elections through the fair use doctrine, the First Amendment's home in copyright.
Diebold is already backing down. Two weeks after our first court appearance, Diebold told the judge that it will stop sending threatening letters and withdraw its current threats. EFF continues to press its case to show Diebold, and other companies thinking of following in its footsteps, that the law has penalties for such abuses. This is the kind of signal that would give other would-be censors second thoughts.
EFF's pro bono representation of Diebold's victims helped ensure the open discussion of voting machines. With your help, we'll be back to save the day next time as well. EFF is a member-supported nonprofit. Get more information about how you can support EFF's work at http://www.eff.org.