03 November 2003

Of Screws and Hammers
It appears that Diebold—the biggest maker of equipment, both electronic and otherwise, for handling bank deposits, and not incidentally a major player in the shift to electronic voting—has decided to use the hammer provided by the DMCA in an attempt to squelch criticism of its electronic voting systems. As reported this morning in the New York Times,

   Diebold Election Systems, which makes voting machines, is waging legal war against grass-roots advocates, including dozens of college students, who are posting on the Internet copies of the company’s internal communications about its electronic voting machines.
   The students say that, by trying to spread the word about problems with the company’s software, they are performing a valuable form of electronic civil disobedience, one that has broad implications for American society. They also contend that they are protected by fair use exceptions in copyright law.
   Diebold, however, says it is a case of copyright infringement, and has sent cease-and-desist orders to the students and, in many cases, their colleges, demanding that the 15,000 e-mail messages and memorandums be removed from each Web site. “We reserve the right to protect that which we feel is proprietary,” a spokesman for Diebold, David Bear, said.

John Schwartz, "File Sharing Pits Copyright Against Free Speech" (03 Nov 03) (emphasis added).

   I'm afraid that Mr. Bear obviously flunked copyright in law school, if he is a lawyer; or that whatever member of the legal department at Diebold briefed him on the relevant law before he made this statement did. Copyright does not, and cannot, protect "that which we feel is proprietary." It can protect only expression of protectable elements. Diebold's internal memos are important not for their expression, but for their content; they are thus better understood as trade secrets. Basically, using the DMCA to try to force takedown of trade secrets that are no longer secret is a serious misapplication of law, akin to pounding screws in with a hammer.

   A comparison to music filesharing—as explicitly invited by the misleading title of the article—makes this clearer. Let's consider Paul Simon's "The Sound of Silence" for a moment. If I were to take a recording of that piece done by Paul Simon—live, off an album, whatever—and post it as an MP3 for anyone to retrieve, that would constitute a copyright violation under the reasoning of Napster (and more cases than I care to cite otherwise, not to mention under the text of the Copyright Act itself and even the Intellectual Property Clause). If, however, I record a rousing rendition of the Central Illinois Kazoo and Musical Saw Orchestra's interpretation of the song, even maintaining absolutely fidelity to the lyrics and musical phrasing (within the technological limits of the instruments) and post it—properly labelled—on the Internet, I have not actually infringed Mr. Simon's copyright. I am liable under another section of the act for paying the mechanical reproduction fee, but that's another issue entirely—and one unique to recorded music. Mr. Simon could not properly use the DMCA to force me to take down the CIKMSO's version, because the DMCA does not apply.

   Diebold wants a different sound of silence: silent criticism based upon fairly damning internal documents that have been released into the wild. Leaving aside the "comment on issue of public importance" aspect of fair use (which is a compelling defense as I see it), the documents in question consist of nonoriginal/noncreative expression that would get minimal protection in any event. I would be really surprised if they have been registered with the Copyright Office, because that requires that they be revealed; and that is the exact opposite of what Diebold appears to want. "Proprietary" information may under some circumstances fall inside the Copyright Act; this is at best a marginal case.

   We want information. I am not a number! I am a free voter! [insert maniacal laughter here]