6:50 PM

The Diebold controversy has gotten to MIT. Friday's issue of The Tech reports that MIT has asked two students to remove a collection of email leaked from Diebold. (The article hasn't been posted to the website yet, but it should appear eventually.) For those not up on the story, around 15,000 internal emails were leaked from Diebold and posted on the Web. Diebold has since attempted to suppress the messages by using the DMCA to force ISPs to remove the messages. This has produced a cat-and-mouse game as the messages have propagated around the Internet, mostly at universities, followed by cease and desist letters from Diebold to the ISPs. Diebold claims that the messages are the copyrighted work of Diebold and demands that the messages be removed under the takedown provision of the DMCA.

So far, it's been a losing battle for Diebold. Although the ISPs have generally complied and removed the material from their websites, it seems to be spreading faster than the company can shut it down. Besides MIT, other schools where the messages have been posted include Swarthmore, Berkeley, and Harvard, where the messages were posted by Derek Slater of A Copyfighter's Musings. Harvard received a take-down request from Diebold and Derek is considering how to proceed in the face of Harvard's two strikes policy on copyrighted works.

It's fair to ask why these messages are getting so much attention. Diebold manufactures computer-based voting machines. Some observers have questioned the reliability and security of the machines and the email messages appear to confirm many of the problems the machines have. I don't want to get into the specific issues of the voting machines here. Instead I want to call attention to the conflict between newsworthy publication and copyright.

The DMCA takedown provision states that if an ISP provides Web space for a user and the user posts a copyrighted work on the Web, the ISP is not liable for copyright infringement if the ISP removes the material in response to a request from the copyright holder. (It's not clear to me that the ISP is necessarily liable if it refuses to remove the material. Anyone have more information on this?) The law is ripe for abuse even with regards to traditional copyrighted works like books, movies, and songs, but situations like the Diebold emails make this abuse more clear. Under modern copyright law, everything written is copyrighted from the moment it is written down. That extends even to internal corporate email which the corporation never had any intention of publication. I expect that corporate email would be considered a work for hire of the corporation and so the corporation would hold the copyright rather than the employee who actually wrote it. There might be a line of defense in the claim that the copyright is held by the employee rather than the company unless there's an explicit statement to the contrary in the company's employment contract or use policy, but I wouldn't want to have to rely on it.

I really have to ask if it makes sense that internal documents be protected by copyright. I don't question that in general companies should be able to get legal redress if internal documents are made publically available or available to competitors, but this really strikes me as more a trade secret issue than copyright issue. Under current law it's both, which allows companies to use the DMCA to try to suppress distribution of the documents. I have to admit that if as a consequence of this copyright supplants trade secret law, that wouldn't be an entirely bad thing. Trade secret law operates at the state level and I can see advantages to standard federal laws like we have with copyright. The current double protection seems redundant.

Returning to this specific case, C. Scott Ananian and David Meyer posted the Diebold emails to their web pages at MIT, provoking a take-down request from Diebold. Both students removed the emails. The Tech reports that Meyer is satisfied that the documents have been sufficiently widely distributed and will not be contesting the order, but Ananian has filed a counter notification asking to be permitted to repost the messages.

The DMCA does not require the party issuing the takedown request to offer proof of copyright ownership. To counter the potential for abuse this creates, the law allows the individual who posted the material to file a counter notice if the material is not infringing. In that case the ISP must allow the material to be published unless the copyright holder takes direct legal action against the individual. The Tech states that Ananian believes that he is entitled to publish the messages under the fair use provision of copyright law and so he will make a counter notification allowing him to repost the messages.

I'm very interested in how far this will go. If Diebold proceeds to take direct action against Ananian, the first question will be whether his fair use defense holds up. The law provides additional pitfalls on both sides, because there are damages associated with knowingly issuing either a false takedown notice or a false counter notice. If Ananian loses on the copyright issues, he may also be liable for the false counter notice. If he wins, Diebold may be liable for the false takedown notice. If Diebold is liable, that may have the side effect of reining in the notices the music industry and other copyright holders have been firing off recently.

The current issue of The Tech also has an editorial on LAMP that I figued I should mention in passing. Like the Diebold article, it is not yet online. (LAMP is a system developed at MIT to make music available over the cable system. The developers had licensed the right to distribute the music from Loudeye and were distributing the music in analog form to avoid copyright laws pertaining to digital distribution. Shortly after the system was launched, the RIAA objected and it has been shut down while the creators negotiate on the legality of the service.)

The other thing that I have to mention from this issue is the front page review of Ruddigore performed by The MIT Gilbert & Sullivan Players. All of the works of Gilbert and Sullivan have entered the public domain which has given the group the ability to pick and choose from the various versions of the show that exist. The choices made were evidently very successful on the basis of the rave review the production received. (Full disclosure: I was a member of the cast of this production.)

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