I get more angry, every time I hear more about the way Diebold is attempting to stifle debate about the insecurity of its touch-screen voting machines. Even if I put aside the red flags about the idea of a company with very partisan leadership getting involved in the voting equipment business, and the fact that Diebold's software has a serious security flaw and does not allow for a paper trail of votes, I am amazed at their response to this criticism - rather than try to improve their software, they try to silence their critics with copyright law! Here's a copy of one Diebold's cease & desist notices, which I found at Chilling Effects. I am glad to see that at least one ISP is standing up to Diebold. I decided to do some research about the intersection between copyright law and freedom of speech - to see if Diebold is the right, and the law is a total ass. ...
Nimmer on Copyright has an extensive discussion on this issue (1-1 Nimmer on Copyright ยง 1.10). They begin with a lawyerly discussion about the importance of both copyright and the first amendment in the Constitution - and how one will never trump the other under all circumstances. They mention the definitional test, particularly as applied in the New York Times v. Sullivan 376 U.S. 254 (1964) in libel. "If the definitional balancing approach is to be applied in the copyright sphere, it is necessary to draw a line between that speech which may be prohibited under the copyright law, and that speech which, despite its copyright status, may not be abridged under the command of the First Amendment." Nimmer also mentions the idea-expression dichotomy and how that often serves as a safety net. But sometimes, it may be necessary to violate copyright and make an extremely important political point. The example Nimmer uses are the photos of the My Lai massacre in the Vietname war, "[h]ere is an instance where the visual impact of a graphic work made a unique contribution to an enlightened democratic dialogue. No amount of words describing the ''idea'' of the massacre could substitute for the public insight gained through the photographs." This is relevant for the Diebold case is because it's necessary that people know of Diebold's internal memo concerning the safety flaw in its voting equipment as evidence - not in a court of law, but in the ongoing public and political debate. Without that "evidence", Diebold will deny that there are any problems. Unfortunately, Nimmer's thesis might not hold up in a court of law - it is viewed with scepticism by the US Court of Appeals (5th Circuit) in Triangle Publications, Inc. v. Knight-Ridder Newspapers, Inc., 626 F.2d 1171. For my part, (and maybe I'm too naive) I would be very surprised if Diebold's cynical copyright tactic wasn't stopped at some point by the courts, especially since the materials they're claiming copyright in have no commercial value (they make their money selling machines, not internal documents). But the sad thing, is that the damage has already been done. Their cease & desists letters have already had a chilling effect on the debate.
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