2004 Free Speech Victory
In the first successful suit against abusive copyright claims under the Digital Millennium Copyright Act (DMCA), Nelson Pavlosky '06 and Luke Smith '07 win their suit against Diebold Election Systems for the right to post an archive of internal memos that expose flaws in the company's voting machines.
Pavlosky and Smith obtained copies of the leaked email messages and posted them on their server at the College. An anonymous poster described these documents on IndyMedia, an independent news site and linked to their location at Swarthmore. Soon after, Diebold sent a DMCA takedown notice to Swarthmore and to Online Policy Group (OPG), a nonprofit web-hosting company providing services to IndyMedia.
On the advice of legal counsel, Swarthmore complied with the request, but OPG did not. Instead, the company and Pavlosky and Smith sued Diebold in federal court for abuse of copyright law. Their suit attracted wide media attention and a call for the House Judiciary Committee to investigate. Three days later, Diebold announced that it would no longer try to stop web distribution of its memos.
Ultimately, a California district court determined that Diebold Inc. knowingly misrepresented that Pavlosky and Smith had infringed the company's copyrights. The court granted summary judgment in their favor, finding that portions of the email archive were so clearly subject to the fair-use defense that "[n]o reasonable copyright holder could have believed that [they] were protected by copyright." In turn, the court also found that Diebold in fact had violated the DMCA by using takedown threats while knowing that copyright infringement had not actually occurred.