October 23, 2003

Diebold Election Systems memos, DMCA, and copyright infringement

The Diebold Election Systems memos, describing problems with their vote-counting machines, are being mirrored by Swarthmore student groups. The administration is apparently cutting-off network access to students mirroring the memos.

Edward Felten asks

Here is my question for the lawyers: Is this really copyright infringement? ... But don't the students have some kind of fair use argument?

I'm not a lawyer, and I don't play one, but I do hopefully have some insights.

The key aspect is that the take-down provision of the DMCA is an automatic escape from liability, whether or not the posting at issue is really copyright infringement. It's a situation of "shoot first and asks questions (or have defenses) later". The law says that if there's the immediate take-down on notice, there's no liability. If there isn't an immediate take-down, well then, do you feel lucky in court? So the obvious incentive is to err on the side of taking down. Or, in legalese (my emphasis):

(1) No liability for taking down generally. -

Subject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service provider's good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.

Now, there's an open issue here of what the take-down provisions mean when people starting doing whack-a-mole. My guess is that the university is afraid that if they have "actual knowledge" that students are using this strategy, that a court may then believe in this situation that requiring endless specific notices of whackery is too much game-playing. The university could be scared a court may look to some concept of total knowledge, not compliance per-mole. And definitely not want to be a test case on the matter. All in all, again, though I'm not a lawyer, it doesn't seem like that unreasonable a thought.

DMCA, watch what you say, or have hell to pay ...

Update: Aaron Swartz asked about counter-notification. I strongly suspect that will be the next act in this drama. But it has to be done carefully, since it's under penalty of perjury. The more I think about it, the more I believe the issue driving Swarthmore's conduct is that it is trying to avoid being the deep-pocked defendant in an upcoming lawsuit.

Note Ernest Miller has new reporting on link-banning.

By Seth Finkelstein | posted in copyblight , dmca , legal | on October 23, 2003 09:59 PM (Infothought permalink) | Followups
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This isn't really relevant because of the counter-notification provision, right?

If the material wasn't infringing, the students could counter-notify which would allow their ISP to be protected and keep their site up.

Posted by: Aaron Swartz at October 24, 2003 12:25 AM

Counter-notification is certainly a possible next step. But it's a reactive step.
And you have to do it under penalty of perjury. It's more complicated than it might seem at first glance.
Even so, I strongly suspect it'll happen.
But it seems like it hasn't been done yet.

Posted by: Seth Finkelstein at October 24, 2003 05:39 AM