Students, ISP Sue Diebold

Quixotic1 writes "The campaign against Diebold that began as electronic civil disobedience took an exciting turn today as the EFF announced that they were filing suit against Diebold for abuse of copyright claims. They will be representing Swarthmore College students and the ISP Online Policy Group, who hosted and linked to copies of controversial internal memos."

You can kill a revolutionary

...but you can't kill a revolution. You see this is why i favor revolution to voting. You don't run into these problems.

Re:You can kill a revolutionary

You see this is why i favor revolution to voting.

I prefer voting. The revolutionary business doesn't pay well, and the hours suck.

Re:You can kill a revolutionary

I would join the revolution, but I have to mail in my mortgage payment by 5pm today.

Re:You can kill a revolutionary

...but you can't kill a revolution. You see this is why i favor revolution to voting. You don't run into these problems.

Yeah, I know it's a joke but I'll bite anyways. The problem with revolutions is that they tend to get a lot of other people killed as well, not just revolutionaries, in fact a lot more often than is desirable the people who win the revolution are not the people generally desired to lead but the ones who are most successful at killing the other side. Always remember
dreams of perfect society + bloody revolution = bloody dictatorship

That being said there becomes a point where a political system degrades far enough some kind of revolution may be in the long term interest. If this Diebold problem isn't fixed fast (i.e.before the next US presidential election) than the US may find the foundations of their political system in very serious trouble. No I'm not saying you guys should have a revolution ;) but don't rest until this issue is resolved in a manner that allows democracy to continue.

Re:You can kill a revolutionary

"Now, let's think about the United States. Gun ownership is much higher, and involves much more sophisticated weaponry."

I wasn't aware that the general american populace had access to something more sophisticated than surface to air heat seeking rockets.

Re:You can kill a revolutionary

Um, the only thing *civilized* governments fear is people in the streets (not a correction to the quote, a correction to the idea). Take China, for instance. People marched in the street, and even stood up to tanks. Then they got mowed down by machine gun fire and were run over by the tanks.

Try this quote, instead: "Power comes from the end of a gun." Considering that quote is from someone who actually seized power over a country with hundreds of millions of people and not a wide-eyed visionary novelist, I think it delivers a more powerful statement.

Clear your cache

This is offtopic:
All the icons are broken and there are now dumbass smiley faces everywhere.

Memos

Those memos are very interesting. They show that the Diebold people did not care a bit for the elections.

Awesome

Fantastic. I was afraid Diebold might be able to C&D this under the rug, and even took (perhaps useless) precautions of "archiving" the incriminating memos in several places (floppies, p2ps, random servers for which I have pw's . . . ). But, it seems like this will see the light of day. This choice quote is a good summary:

"Diebold's blanket cease-and-desist notices are a blatant abuse of copyright law," said EFF Staff Attorney Wendy Seltzer. "Publication of the Diebold documents is clear fair use because of their importance to the public debate over the accuracy of electronic voting machines."

Indeed. Better still:

"Instead of paying lawyers to threaten its critics, Diebold should invest in creating electronic voting machines that include voter-verified paper ballots and other security protections," said EFF Legal Director Cindy Cohn.

Or just give up and leave it to someone else. Diebold's credibility is ruined, IMHO. If you don't agree, read those memos flying around. Systemic fraud exists in Diebold's practices. The should be nailed. And not like Enron, really nailed.

Re:Awesome

"Diebold's credibility is ruined".

I disagree. Most of the general public has never heard of them.

Re:Awesome

Most of the public has seen their names on ATM machines. While they might not know much about the company, they know they give them cash, and that's good enough for many a joe consumer.

Radio coverage

And NPR just ran a story on it

http://www.npr.org/features/feature.php?wfId=149 09 01

Re:Awesome

Even if Diebold wins, the documents that were linked to might well end up as part of the public record, and won't be censorable, then. When the documents surfaced, the genie was already out of the bottle. Diebold's efforts to stop the spread of the documents has only resulted in more people taking notice of what's going on. There's no telling how a judge will rule in this case. The U.S. judicial system is a mess and has next to no consistency. It's entirely possible that Diebold will win. But in the process, the truth is already out there. You can't censor the public record. They've made what was a little mess into a big mess.

browsable archive

here are all the memos for your browsing pleasure:
http://tapdance.sourceforge.net/diebold/ [sourceforge.net]

hope this helps

Re:browsable archive

Why not use this [chroot.net] mentioned in the summary. A) it loads fast, and b) layout is quite a bit better.

Shady?

From what I read in the article/press release by the EFF, this is going to be a fairly shaky case;

"Publication of the Diebold documents is clear fair use because of their importance to the public debate over the accuracy of electronic voting machines."

How that statement is going to hold up in court would be very interesting; it's debatable how much we the people (in the eyes of the court) should know about the internal workings.

For example, I'd imagine that's why we don't get to listen in on the Supreme Court's discussions; that's a basis for our democratic process, but we don't watch it, we aren't allowed to (no big fuss about that either).

Blah, I don't know what I'm talking about.
Sig & Below [sp00fed.net]

Re:Shady?

Here's why the fair use argument will hold up in court:

- They show intent to break the law (among other things, patching an election system without having the patch certified, not to mention faking demonstrations for elections officials). You can't claim copyright on the plans to rob a bank and then complain when people start investigating.

- The work is factual. This isn't about pirating The Matrix or Britney Spears.

- The memos (themselves) are not marketable. Yes, of course, this will affect Diebold's business immensely. But the DMCA's fair use clause only applies to works that themselves have a market.

- They're fundamental to democracy -- and aren't checked in any other way. The Supreme Court can operate "in secret" (though it's not really all that secret) because they are checked by the Congress. We have no mechanism for impeaching Diebold, especially if they cloud all of their vote-counting procedures under trade secrets or spurious claims of copyright(-infringement).

I would say, in fact, that this is one of the most solid copyright-contesting cases to come along in a while.

--

Quick general question...

OK, I've been doing a little background reading, and my question is, how are internal memos copyrightable? Isn't a copyright supposed to be issued to a work for sale? Unless someone in the company is selling copies of the internal memos, how is it protected?

If they wanted to protect the information, couldn't they invoke Trade Secrets? It would seem to me a better path than copyright.

Of course, couldn't Diebold be liable for sedition? They are trying to usurp the power of the election, something clearly listed and enumerated in the Constitution. Of course, I'm not a lawyer, check out the wording.

http://www4.law.cornell.edu/uscode/18/2384.html

Re:Shady?

Not shaky at all, this is very similar to the petagon papers, except it is against a private company. However, since this involves voting rights, there is overwhelming public interest in the content given that this invloves election fraud. More on the pentagon papers. [gwu.edu]

Re:Shady?

I regret to say that I must agree with you: This case is going to be a tough one for the EFF.

The primary problem is that past court cases have already "settled" the question of public interest vs. copyright. Sadly, the courts decided that copyright trumps compelling public interest, and that copyright holders can silence any critics who attempt to use their own words against them in the theater of public debate. These decisions were sought and obtained by the Scientology cult.

Schwab

Scientology argument ain't the same...

Scientology documents have marketable value; ie they were made available to high level members who pay money to achieve that high a level in the Scientology organisation. It is therefore possible to argue that the Scientology documents lose value as a tool to encourage members to progess within the organisation (and get access to thee documents) if made publicly available.

So there is a difference between these cases.

Lots of interesting issues here.

If you fail to properly secure your website, do you lose copyright interest in your information?

If I was a (hypothetical) member of the Diebold mailing list, and there were a few e-mails in that bunch that I authored, do I retain copyright on my e-mail? I always assumed I was offering a non-exclusive right to the audience of the list to read/retain/copy/etc., but if that audience increases without my knowledge or consent do I lose the legal right to complain?

When the media reports on specific items in the memos, do lawyers/judges figure the toothpaste is pretty much out of the tube at this point or is there the possibility of going after reporters?

Re:Lots of interesting issues here.

Of course Diebold retains copyright to its memos.

But copyright does not trump all other interests, specifically copyright does not prevent the documents from being used in a criminal investigation or civil discovery action. It doesn't even prevent the documents from being used in making arguments to open a criminal investigation or initiate a civil suit.

IMHO (and as a non-lawyer who has a strong professional interest in civil liberties) what Diebold is doing is legally no different from some sick bastard who videotapes himself drugging and raping women trying to prevent his victims from taking the video to the police. The harm caused by allowing the complaints to be squelched is far greater than the harm caused by forcing disclosure against the wishes of the copyright holder.

Now if Diebold was sending C&D orders to prevent their inclusion in a general interest book on computer voting systems... then they might have a case. In that case the memos would be used to enrich somebody else, not to call attention to a matter of critical public interest.

Good!

Its nice to see the Memos will get to see "light of day" in court, or will they?

It will be interesting to see if the Judge decides to take the nature of the CONTENTS of the memos into account when deciding upon this case.

At any rate I look forward to following this case, I just hope it starts getting some national exposure. CNN reported on one aspect of this, however they did NOT mention the implications (or the validity) of the CONTENTS of the memos.

Diebold is winning

Pending: your vote is now the property of Diebold, Inc. Any attempt on your part to ascertain the disposition of your vote is hereby declared to be in violation of federal law, e.g., the Digital Millenium Copyright Act.

You have the right not to vote. Any vote you make can be used against you in a court of law. The judge presiding in such a court of law may be appointed by Diebold, Inc., and need not require a jury, but if a jury is summoned, it need not be a jury of your peers.

By acting to vote you consent to our determining whether your vote is valid, and in the event it is judged not to be valid, you consent to our voiding your vote and further voiding your right to vote in the future.

You furthermore acknowledge that owing to storage and bandwidth limitations that Diebold, Inc., may experience, your vote may be digitally compressed in a way such that your true intent in casting the vote may be lost. If such an eventuality should occur, your vote may be determined using statistical data derived from any source we deem appropriate or convenient.

You have the right to protest if your vote is cancelled, altered, or in any way modified as the result of such action on our part, however, you hereby acknowledge that in such an eventuality, Diebold, Inc. may determine that your right to vote is deleterious to democracy as implement by Diebold, Inc., and therefore may be considered to be an overt act against the national security of these United States.

You have 10 seconds to comply.

God Bless America.

Internal memos aren't copyrighted

IANAL

Copyright only applies to published works. Memos aren't published so they aren't copyrighted.

Donate

Now's a good time to Donate [eff.org] to the EFF. As we all now, small donations can add up to a lot, if people who care pitch in.

If you agree with EFF's decision to stand up...

If you agree with the EFF's decision to stand up to Diebold, then I may suggest making a small donation [eff.org] to the EFF to show your support.

I just gave the EFF money ...

... and everyone else should too, if you can possibly afford it. This case is the tipping point for me. I've always admired the EFF's work, but most of it hasn't affected me personally. The voting machine issue affects everyone in the US, and given the importance of the US globally, everyone on Earth. Put your money where your mouth is.

Just demand a recount.

If you want to cause trouble for them, just demand a recount. When it is found to be impossible, people will notice. For the conspiracy minded, notice that the loser didn't contest the election and demand a recount - This makes sense if you think they are all really on the same side and the public is the enemy. I'm not that cynical yet, but a lot of /. readers are :-)

I'm a poor student livin' on loans

but I still scraped up 10$ and donated to the EFF using PayPal.

I really encourage everyone to do the same. Lawsuits don't come cheaply.

James

If you want it done right...

Hire the guys that create the lottery machines. They're incredibly secure, yet easy enough for convience store clerks to operate. Due to performance riders (the software company pays penalties if the system goes down) they're extremely stable. They sure as hell don't slip patches in when no one is looking.

Seems like a no-brainer to me.

Vegas Baby, Vegas

Slot machines in Vegas don't serve the same purpose as voting machines, but the system set up to regulate those slot machines, their manufacture, programming, every part of their operation, is very secure. Voting machines are just another example of an industry prime for careful regulation.

WTF is up with the smilies

I really hope Slashdot isn't going to start using those stupid yellow smiley faces for friend foe etc. On a website that is mostly Black white and Green, little yellow circles are about the most annoying graphic that could be added.

You know..

This case may not be as strong as it could be, but there's something really good that could come out of it.

The discovery process. I want to see documents presented in court that are imperative to the EFF's case that are absolutely incriminating to Diebold when it comes to voter fraud. If that stuff gets on the record, the news media is going to have a heyday.

since so many are passionate about this

My question is this:
There seems to be many, many people who are very passionate about this issue. Why can't someone produce a talented team to produce a free, open source alternative to Diebold's system and then pitch it to concerned governments?

Reminds me so much of MS

Favorite quote - at the bottom:
"4K Smart cards which had never been previously programmed are being recognized by the Card Manager as manager cards."

Reminds me of the Win2K/XP feature that makes you an Admin if you insert an install disk.

NPR

All Things Considered ran a good overview [npr.org] tonight of the Diebold story.

Cited are critiques of security and even poor code quality, the guts of internal memos now floating around, Diebold's threats against ISPs, and comments from the EFF.

(Runtime, 4:50; RealPlayer or WMP required)

Was the voting software written off-shore?

Diebold HMA to become software-sourcing hub for Diebold Inc

Nitya Varadarajan

Chennai, March 7: Diebold HMA, a joint venture with 50:50 holding between Diebold Inc and HMA Data Systems in Chennai, will be expanding its software development operations for Diebold Inc's operations worldwide ... rest of article [financialexpress.com]

what about copyright on spam?

What about spam email writers that claim copyright on their email? I've seen dozens of emails that say "this message is intended for recipient x. Delete if you are not recipient" etc. Does copyright on spam still apply?

Court Documents

Once the originals of the memos have been presented in court don't they become something that anyone can read as part of the court record? If so at the least the EFF could post the court transcripts and make the memos public that way.

Where to sue? Venue counts...

If the State of New Hampshire used Diebold, it would be interesting to file suit there.

The Constitution of NH includes as Article 10:

[Art.] 10. [Right of Revolution.] Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance ag ainst arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.

This is one of the most clearly delineated passages anywhere in American law pertaining to the ultimate rights and, more importantly, RESPONSIBILITIES of citizens.

I wonder when.....

we'll see microsoft leaked memos

that would be quite interesting, ya

Diebold might not hold up in court, but if this were M$, I wonder if the situation would be the same.....

Vermont

"Live Free or Diebold."

Exercise in futility

Remember the DirecTV extortion case? The people complaining about the extortion not only got slapped down by the court, the court made them pay DirecTVs legal costs to the tune of $100,000. Same thing will happen here.

The courts hate people challenging copyright.

Democracy at its root

All I can say is thank God, praise Allah, thumbs-up Yahweh and pass the mashed taters. Confidence in elections is what separates free citizens in a democracy from sheep in a dictatorship. I'm glad the EFF has stepped up to the plate to fight the good fight and will contribute what dollars I can to lend a hand.

But this is a fight we have to take on locally. Find out what's used in your district. If they use black-box machines with no paper trail (virtually everyone does) then hit 'em with a big ole ream of this [ratm.net]. Send it your city councilmember, call your Congresscritter [house.gov] and your Senators [senate.gov], bitch to your local paper, blog. Do something.

My favourite excerpts:

"I need some answers! Our department is being audited by the County. I have been waiting for someone to give me an explanation as to why Precinct 216 gave Al Gore a minus 16022 when it was uploaded. Will someone please explain this so that I have the information to give the auditor instead of standing here "looking dumb"." [source: http://chroot.net/s/lists/support.w3archive/200101 /msg00068.html ]

Or how about:

In response to a question about a presentation in El Paso County, Colorado: "For a demonstration I suggest you fake it. Progam them both so they look the same, and then just do the upload fro [sic] the AV. That is what we did in the last AT/AV demo." [source: http://chroot.net/s/lists/support.w3archive/199903 /msg00098.html ]

Or even:

"Elections are not rocket science. Why is it so hard to get things right! I have never been at any other company that has been so miss [sic] managed." [source: http://chroot.net/s/lists/announce.w3archive/20011 0/msg00002.html ]

Makes me feel all warm and gooey inside, but not in that comfortable, sated, internally glowing way. In that queasy, rumbling, internally bleeding, hosting-an-Alien-baby kind of way.

Woohoo

Despite the difficulties (and I have nothing monumental to say here), YES, YES, YES, YES, YES! I have to say thank you to the EFF, and those more actionably dedicated than I, for bringing this to a legal forum.

here is my mirror

Here is my mirror [50free.net]. Diebold DCMA claims are bogus.
-Seriv

Subpoena them up one side and down the other

I hope Diebold doesn't settle or withdraw their claims. Or if they do, then the EFF doesn't accept or withdraw their suit.

I hope the EFF take Diebold to court and subpoena them for all their worth. Get to the bottom of this. Establish a public record of just how incompetent or, more likely, corrupt these voting system companies can be. Call in expert witnesses. Depose the (largely Republican) executives. Find records of the communications Diebold has been having with election officials across the country, and why they haven't been doing their jobs. Shame them into getting a clue. Anything they can think of to establish the truth about how our democracy (?) is being run.

Great scheduling

The EFF arranged for the hearing on this matter to be held on election day. Tomorrow. With a press conference after the hearing, at the Federal courthouse in San Francisco.

It's not clear whether they'll win a preliminary injunction, but there's a good chance of it. Either way, it's great PR.

How about a California anti-Diebold Proposition?

Hey, why not use this ability to submit Propositions for something good, and use them to outlaw closed source, paper trail-less, unaudtable voting machines like Diebold's here in Alameda County.

It would be good if this could get on the March primary ballot, so that there'd be time to ditch them before November, and for other states to realize that they should ditch them, too.

I did just realize, there's a huge conflict of interest with using Diebold voting machines to count votes on an anti-Diebold proposition. We'd have to conduct opinion and exit polls to make sure that the results of the election agreed with how people actually though, since Diebold has already shown that they can't be trusted, and often get the wrong results (always in favor of Republicans, it seems).

Whuh??

Students sue Diebold?

What is this? Soviet Russia?

NPR covered this today on All Things Considered...

NPR did about 10 minutes about the suit this afternoon on All Things Considered. They even had Wendy on. Also, a good overview about the problems with the machines. It appears the mainstream media is catching on to this. Shall we start a pool on when Faux News picks it up? (My guess is never!)

Some info Diebold can't sweep under the rug

My town, little old Dayton, Indiana, with only about 200 voters, uses Diebold voting machines, as mandated by the county. In this morning's election, the machines would not allow voters to cast multiple votes in a category (for city council, I believe).

So, the opening of elections is currently being postponed while we print punch-card ballots. As of now, I think the voting is 1.5 hours late.

We trusted Diebold voting machines, and we had no backup plan. Someone is going to hear about this. I guess Diebold machines are not only insecure, they are also unreliable!

Give till it hurts

Thank you very much for taking the time to fill out our online donation form.
This e-mail may serve as your receipt for your tax deductible donation to the Electronic Frontier Foundation (EFF).
On 11/3/2003 8:41:44 PM you pledged a one-time donation of $25 to the Electronic Frontier Foundation.

To fight these fights on any practical level, they've just got to have the ol' cashish. Have you contributed?

want people to pay attention to those memos?

Make it an email forward.

I'm not kidding. And while i feel bad about recommending that we increease the amount of blank-minded email forwarding out there...and don't really know that it's a good idea... Think about the junk that DOES get forwarded. The best reason i can think of to do this is that it would wake up some sleeping people. The best reason NOT to is that it requires trusting those sme sleeping idiots with actual information to pass on, and hoping that they don't get creative somewhere along the way. So what follows could well be the world's worst idea:

Take the memos. Put them in an email- as text, not as attachments, or a a link to one of the sites hosting them.

Tell the recipient what the issue is, and why it matters.

Tell the recipient to tell their friends and get informed about this. Tell them about the EFF. Use the name Diebold and mention that they make ATMs, but aren't keeping the voting machines up to a verifiable standard.

Tell them to talk to their friends about it.

Send memo.

Four weeks later, there will be millions of Americans wondering when Bill Gates will send them a check that they can donate to gove the little boy with cancer a new kidney to replace the one that got stolen.

And hundreds of thousands, at least, will be asking out loud about Diebold and voting machines. Information can spread as fast as misinformation, But it unfortunately would have to use the same channels. And is likely to lose a lot in translation- but before it changes beyong recognition, a lot of people could learn things that they really ought to know about.

good luck finding anything good in link to memos

Holy Filing Cabinet, Batman! The link to the "controversial internal memos" was a good thing to do, but by gosh, I tried to find anything worhwhile and came up empty. THERE ARE THOUSANDS OF EMAILS, with the only "organization" being that they are grouped by date. Lots of scathing memos about "server maintenance" and other such crap. Thanks for nothing...

Re:uh oh...i think /. is a little whaXor3d out

It's not just you, but I think we will survive somehow.

Yeah, I know, -1 Offtopic.

I really wouldn't care

if the guy that made the machines was a partisan crook as long as the system was secure.

By secure I mean that system can't be cheated even if the people that run it have unlimited money and very good motivation.

Failing that, I'll accept a system that makes it very hard with severe penalties for even trying to cheat me out of my democracy. Life in FPMITA prison or death. It's that important.

Re:Diebold, die!

"How can one of Bush's top fundraisers be allowed to run the company producing the computerized voting machines to tally his votes in the next coup de corp?"

How could you claim to be a free country if you had a law that specifically prevented that individual from doing so? The conflict of interest is clear, perhaps, but there seems to be no problem with disclosure. You want to be the first one down the slope where you decide what ventures people may or may not invest in? You want to use the theory that there might be a vast right-wing conspiracy as your criterion to make that decision? You willing to do this without evidence?

The Diebold memos are evidence of poor management, and poor quality control processes. Possibly there is even evidence of some fraud, but it looks like the fraud is limited to a coverup of quality deficiencies. It's a long, long way from here to exposing the conspiracy that finally brings down the house of cards on top of The Man.