ATTN anti-BBV activists: DIEBOLD SHUT ME DOWN

[Zhade]

Hi again.

When last we met, I had successfully mirrored Jim March's Diebold test notes website, along with (most of) the files pertaining to the SLO phone-home. That was yesterday. The files went up at roughly 1:45 (Pacific).

I got this email at 5:41 today. The files got yanked within 28 hours.

These guys are fast.


To: Walker & Jocke <[e-mail]>
Subject: <#64828> Re: COPYRIGHT INFRINGEMENT
MIME-Version: 1.0
From: DrakNet-Jen <[e-mail]>
X-Mailer: ubersmith 2.1.2, PHP/4.3.2
Reply-To: [e-mail]
Cc: [e-mail]
Content-Type: text/plain; charset="ISO-8859-1"
Content-Transfer-Encoding: 7bit
Message-Id: <[e-mail]>
Date: Thu, 11 Sep 2003 20:41:12 -0400 (EDT)


This response has been cc:ed to the web site owner, and the files have been deleted.

dragonwind:~# cd /www/htdocs/smashthetrifecta
dragonwind:/www/htdocs/smashthetrifecta# rm pimaupgrade.zip rm: remove `pimaupgrade.zip'? y
dragonwind:/www/htdocs/smashthetrifecta# rm GEMSIS-1-17-17.ZIP rm: remove `GEMSIS-1-17-17.ZIP'? y
dragonwind:/www/htdocs/smashthetrifecta# rm GEMSIS-1-17-23.zip rm: remove `GEMSIS-1-17-23.zip'? y
dragonwind:/www/htdocs/smashthetrifecta# rm GEMSIS-1-18-17.zip
dragonwind:/www/htdocs/smashthetrifecta# rm cobb-corrected-100102- backup.zip rm: remove `cobb-corrected-100102-backup.zip'? y
dragonwind:/www/htdocs/smashthetrifecta# rm sloprimary030502.zip rm: remove `sloprimary030502.zip'? y
dragonwind:/www/htdocs/smashthetrifecta# rm ATL-TSRepair.zip rm: remove `ATL-TSRepair.zip'? y
dragonwind:/www/htdocs/smashthetrifecta#

Please note that we don't host "coopster.net", so I'm not sure what you're expecting us to do about their file.

Domain Name: COOPSTER.NET
Registrar: GO DADDY SOFTWARE, INC.
Whois Server: whois.godaddy.com
Referral URL: http://registrar.godaddy.com
Name Server: NS1.ZONEEDIT.COM
Name Server: NS3.ZONEEDIT.COM
Status: REGISTRAR-LOCK

Please note that the web site owner can file a counter-notification. Info on how to do so is below.

http://drak.net/dmca.html

-- Jen DrakNet
Support Pages
http://www.drak.net/support



---- Original message ----
September 11, 2003
Jennifer Bryan Dragonwind Internet Services 608 Live Oak Drive Cedar Park, TX 78613
[e-mail]
RE: COPYRIGHT INFRINGEMENT
Ms. Jennifer Bryan,

We represent Diebold, Incorporated and its wholly owned subsidiary Diebold Election Systems, Inc. (collectively "Diebold"). Diebold is the owner of copyrights in certain software, documentation, and other works of authorship associated with its proprietary electronic voting machines ("Diebold Property"). It has recently come to our clients' attention that you appear to be hosting the following website: www.smashthetrifecta.com on one or more of your servers, identified as NS1.DRAGONWIND.NET or NS2.DRAGONWIND.NET. This websinte , particularly each of the following pages, includes program and/or data files containing Diebold Property.:

http://www.smashthetrifecta.com/pimaupgrade.zip
http://www.smashthetrifecta.com/GEMSIS-1-17-17.ZIP
http://www.smashthetrifecta.com/GEMSIS-1-17-23.zip
http://www.coopster.net/Web%20Shares/GEMSIS-1-18-17.zip
http://www.smashthetrifecta.com/cobb-corrected-100102-backup.zip
http://www.smashthetrifecta.com/sloprimary030502.zip
http://www.smashthetrifecta.com/ATL-TSRepair.zip

Other information posted on these web pages encourages the downloading of Diebold Property from the server and describes how to circumvent passwords and other technological measures that are designed to control access to the Diebold property. The owner of the smashthetrifecta.com website does not have Diebold's consent to use any Diebold Property. These web pages infringe Diebold's copyrights by (1) placing an unauthorized copy of the Diebold Property on the server, (2) making the Diebold property available to third parties to download from the server and authorizing third parties to further infringe our clients' copyrights by downloading and therefore copying Diebold Property, and (3) encouraging and assisting in the circumvention of copyright protection systems. The purpose of this letter is to advise you of our clients' rights and to seek your agreement to the following:


1. To stop using and to immediately delete any Diebold Property from all computer systems used by you, or operated under your control, and to confirm having done so in writing;


2. To confirm, in writing, that you have no backup copies of any Diebold Property;


3. To cease making Diebold Property available on your server and to cease providing the opportunity for any third parties to download, and thereby copy, Diebold Property.


The value of property protected by copyright arises in large part from the right to control access to and use of such property. Hosting a website which encourages all visitors to copy and use the Diebold Property without permission from or accounting to Diebold is a clear infringement of Diebold's rights in the Diebold Property. Our clients reserve their position insofar as costs and damages caused by the unauthorized reproduction and distribution of Diebold Property are concerned, and their right to seek injunctive relief to prevent further unauthorized reproduction and distribution of Diebold Property, pending your response to this letter. We suggest you contact your legal advisors to obtain legal advice as to your position. We await your response within 24 hours.


Respectfully,

Nancy L. Reeves
Walker & Jocke 231
South Broadway Medina, Ohio 44256

-- Walker & Jocke
http://www.walkerandjocke.com


Okay. Bev, DMA, El, anyone, any advice on this? It seems these guys are rabid about not letting people see their dirty business.

There was a note at the end of the email from W&J to the effect of the email to Drak Net being confidential. However, my service host included the letter by accident (?) in the CC: back to Deibold.

[Clete]

1. This is bad, isn't it?

This is not the action of a free society.

[incontrovertible]

4. DMCA

This's just a simple DMCA complaint. Nothing at all unusual about it.

Just wait'll corporations control what you can and can't do with your computer, including what you can and can't read/see/download online. Look up "palladium."

The Internet as we know it will be history within ten years, turned into a purely commercial medium. Your interaction with it will take on the exact same quality as using a remote control to change television channels.

[Vadem]

44. Please translate for us: DCMA

I've been racking my brain as to what it could be. Please inform us!

Thanks!

[OldSoldier]

55. DMCA = Digital Millennium Copyright Act

Google DMCA. It's bad. I can't believe any Democrat would sign off on it. Unfortunately, Clinton did.

[jackcgt]

29. What, protecting one's copyprotected intellectual property?

What did you expect they would do?

[Clete]

36. Votes are copyprotected intellectual property?

Of whom,the fourth Reich?

[Nederland]

70. The votes are not...

...but the source code is.

[Zhade]

77. These files are NOT source code.

NT!

[Wonk]

2. Um, you might want to edit out some of your personal info from that post.

Just a thought...

[Zhade]

12. I think I'm okay - nothing here besides my already-public email address.

If you do see otherwise, please let me know what I missed. Thanks for the heads-up!

[AP]

3. This is fascinating, because if there were every a public interestti

exception, this is it.

You should definitely call the OH bar and try to track down the best First-Amend and copyright lawyer you can find.

Copyright law takes into a lot of considerations, and one primary consdieration is whether you're hurting the copyright owner's right to make a profit of their product. You aren't selling this stuff, and in fact, the only people who use it are states bodies, and, what, diebold's claiming that they're going to take it off your website instead of buying it from Diebold? That's a laugh.

Another thing (although they don't make this claim in their letter) is confidentiality, you have no privity of contract with Diebold (you didn't enter into a conf. agree with them). Once something's out in the public, Diebold's remedy is to sue whomever breached their confidence, presuming they had a contract with that person.

Diebold put this out into the public on their own. Maybe somebody broker into their system, but it wasn't you.

Here's an interesting angle though: DMCA. Maybe that was carefully written to include Diebolds special interest in keeping this shit quiet. If there is something in it that makes what you've done illegal, I'd definitely want to take this to court and and have that law overturned. Copyright law is not meant to stifly legitimate public debate on matters of public interest (especially ones as serious as this).

[NashVegas]

5. Has Anyone Put These Files on Gnutella?

Or other file sharing networks?

[angka]

64. allegedly.

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=104&topic_id=283649#285180

[AP]

6. I want to repeat for emphasis...

...and this shouldn't be construed as legal advice -- talk to an OH laywer.

Deibold claims that you are hurting the commercial value of their property. I guarantee you that nobody is taking this stuff off the internet so that they can run an election on crappy software without paying Diebold royalties. This isn't like downloading music.

People are downloading this to see if our democracy is in jeopardy. You should get a lawyer who is willing to make those arguments.

[Eloriel]

10. There's another way to look at it

By disclosing just how crappy their software is, it diminishes the "value" and saleability. (Or SHOULD, dammit.)

Eloriel

[AP]

11. But nobody is allowed copyright protection to hide how crappy their shit i

is.

You are allowed a right to sell your own shit, and that's pretty much the crux of it.

If this isn't you selling their shit (or hurting the market for their shit because you're stealing a sale from them when you give it away for free), then it's not infringement of copyright.

If fair use of copyright material hurts the market for the copyright material because it casts it in new light, that's pretty much tough shit for Diebold, I believe.


And copyright law DEFINITELY isn't meant to stifle discussion about a copyright property. (Nor can trademark law be used to stifle discussion of the tradmarked goods).

[Eloriel]

30. Are you an attorney?

I'm not, but your argument doesn't ring true to me nonetheless.

Eloriel

[AP]

32. Sec. 106. - Exclusive rights in copyrighted works

Subject to sections 107 through 121, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission

--

Basically, these are your rights. They're all about how the work is used. You don't have a right to stop people from commenting on your work.

[BevHarris]

24. Note also that Diebold's defense to Hopkins/Rice was that

all the files were old and out of date and not used in elections.

Bev

[AP]

25. Yeah, good point.

Not using copyright property doesn't mean that you're putting it the public domain, so this isn't the argument that there's no copyright in the software. However, if you're making the argument that you're not making commercial use of the copyright material, you'd certainly throw in for good measure Diebolds statement that this stuff is old and obsolete (and defective).

It's padding, but it's worth mentioning.

[AP]

27. 17 USC 107 -- fair use exceptions

Notwithstanding the provisions of sections 106 and 106A, the fair
use of a copyrighted work, including such use by reproduction in
copies or phonorecords or by any other means specified by that
section, for purposes such as criticism, comment, news reporting,
teaching (including multiple copies for classroom use),
scholarship, or research, is not an infringement of copyright. In
determining whether the use made of a work in any particular case
is a fair use the factors to be considered shall include -
(1) the purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in
relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or
value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding
of fair use if such finding is made upon consideration of all the
above factors.
--
And the argument would be:

(1) This not a commercial use of the copyright property. (The educational use exception is actually very specific, and wouldn't apply here.)
(2) The nature of the work is that it's, perhaps, evidence of, at worst, a crime, and at best, a very serious threat to democracy.
(3) The whole work is being used, so this doesn't help you.
(4) There's absolutely no effect on the potential market except insofar as people won't want to use it when they see it's junk, but then again, there's a strong implication that it's being purchased because people know it's junk.

Each one of these sections has generated tons of case law, and I don't know what the case law is, so I'm just shooting from the hip with these arguments.

[DEMActivist]

33. Actually, on #3 you would be incorrect

What he had on the site doesn't begin to constitute the "entire work." Not even close.

He was providing a very small portion of the complete system.

[AP]

40. Copyright inures to each individual work. #3 d/n mean "entire collection"

It means the amount of each individual copyright property.

This is to protect people who quote a line or two from a longer work.

Each document on the server is the entire copy of that document.

[BevHarris]

96. IMPORTANT: I'm not sure now how this applies

when you say "the entire work" as the entirety of what was on the server, and each document being considered copyrighted to Diebold as part of that work, how does this apply:

Many of the documents on that site belonged to others. In fact, the site contained:

- Some open source software developed by others
- Some copyrighted software developed by others
- A $2000 suite of Microsoft developers tools whose copyright belongs to Microsoft. (I talked to one of the four dealers for this pricey software. No way it should have been sitting on a wide-open Diebold FTP site!!!
- User manuals written by Hewlett Packard and others
- Computer drivers developed by others
- Databases with people's personal information in them (for 300,000 people in Texas)
- Stuff that is copyrighted by others and says "do not distribute or place the contents of this on any network."

All in all, about half of the files on that site belonged to others

How, then, can they EVER claim copywrite protection to the entire work by saying it includes everything on their site? Wouldn't this, then reduce their copyright protection to having to fight over each individual document?

[Zhade]

97. DAMN GOOD POINT.

But what do we expect from a company that's thick as thieves with right-wing Republicans and defense contractors?

This is exactly the tool I needed. I need to collect all evidence of Diebold's copyright infringement of others and then I'm filing a Counter-Notification.

FUCK DIEBOLD. They're hypocrites on this, and they had NO right to shut me down. I'm fighting this.

[Zhade]

98. I've been persuaded otherwise.

More harm than good could come of forcing Diebold's hand (though my intention was always just to get to the point where they file an injunction, then drop the matter, further bad press against them having been created).

The risk is too big to the whole movement for me to press the issue. So I've decided not to pursue this course.

[John_H]

35. offshore servers?

a possibility?

[AP]

41. Berne Convention. Most nations have signed the treaty and would

respect the same claims overseas.

It's not like this is a criminal matter and you can jump around to another jurisdiction that doesn't recognize the crime. It's essentially a copyright claim (which should fail). All countries are going to respect copyright claims if they've signed on to the Beren Convention.

[incontrovertible]

7. It IS DMCA

I've seen that same letter in a hundred different variations. "You are hosting a website that contains this file. This file is our copyrighted material. Remove it or we will sue you and have you brought up on federal charges."

I doubt the DMCA was written with Diebold in mind. It was written to eliminate Fair Use from copyright law. It has the nifty side effect of stifling any speech any corporation finds unappealing.

"Oh, you didn't pay us to have our brand logo appear accidentally in the background of your independent documentary? Remove it, or we'll sue you and have you brought up on federal charges. Oh, and we also contend that your entire documentary is a 'derivative work' arising from our logo, since our logo appears in it. So you can't distribute it or show it to anyone. Dispute that? See you in court. We've got billions, you've got shit. Enjoy prison."

Unfortunately, no, this was not a Republican-only piece of legislation. Not by a longshot. It either goes down in flames via a well-funded court challenge, or the U.S. continues to slowly just become China, in terms of civil liberties.

[AP]

8. I think the last claim (number 3) is trying to lay the groundwork

for a DMCA claim. However, these were just placed on the internet. There was no attempt made to stop them from being copied. (It's not like there was some encryption in place). They put them on the net so that people COULD READ them.

[incontrovertible]

23. trust me, I sympathize

They put them on the net so that people COULD READ them.

Oh, I don't doubt that. Unfortunately, the DMCA doesn't care. It was explicitly written to put the burden of proof on the accused, and to hold the ISP equally liable for any alleged violation by any content provider - despite the protests from everyone in the ISP industry. Basically, if someone says you're infringing, you're infringing, and your ISP has to treat you as such, unless you can prove otherwise. Most likely in court.

I expect Diebold just didn't like the content of the site, thus the DMCA complaint form letter.

[John_H]

34. What do you think would happen if a state hired a security consultant

to test the security of voting systems they have licensed/purchased?

[AP]

43. You'd have to look at the contract with Diebold.

If I were the state's lawyers, I would have insisted on a provision that said the state or its designated agent may at any time decompile the software (I'd have Diebold put the source code in escrow) or take any other measures as the state deems necessary to confrim the software meets the secruity standards (as set out in the attached schedule) or whatever security standards the state deems necessary to ensure that the software and hardware and the products of Diebold's services conform to ...etc..etc...If the software fails this test, failure being the sole determination of the state, it is a material breach of this contract, and Diebold shall pay to the state the full contract price as set out...and any additional sums paid for service accoring to the attached schedule.

If I were Diebold, I would try to negotiate something like, upon 2 weeks written notice, Diebold shall perform such security testing as agreed between the parties to be performed on the software at Diebold's headquarters during regular business hours to ensure that the softward conforms to the standards set out in the attached schedule, the results of which shall be communicated to the state within a reasonable time no later than 2 business days before any election in which the state intends to use the Dieblold software. Breach of this provision is not a material breach of the contract, damages, if any being limited to $25 for each full day the software is not used for a regulary scheduled election.

You see, presuming the state is bargaining with the interests of its citizens in mind (which I doubt), the state will want to be able to test any time, by any body (a state employee or designated agent), and will want termination and damages if the software fails the test, and the state will want to have a lot of control over the parameters of the testing. Diebold will want the opposite. They'll end up somewhere in the middle, but the middle should be way closer to what the state wants since this is a matter of tremendous public importance, and any private contractor should appreciate this fact when dealing with the government (except, thanks to Republicans, it's more like, if you're contracting with the state, pull the money truck to the back door and load it up!).

So, if the scope of the license allows a security firm to look at the software (eg, with the source code) the state can do it. If the contract says nobody can decompile the software, then it would be a breach if they did it.

Clearly, this is somethign that goes right to the value of the subject matter of the contract, so there must be some legal principle which would allow it. (Ie, this isn't like a computer game or spreadsheet software where looking at the internal structure might help you come up with your own software, or where you can tell by using the game or spreadsheet that it isn't working.) It's quite possible that a verry stupid or corrupt state signed a contract to buy software which forbids them to confirm that it works properly by looking at the code, and which doesn't grant ANY remedy at all if they suspect the software is bad.

[John_H]

73. Looks like we know what we need to do folks!

This is pretty much what I'm being told. Somebody should be trying to get these contacts in every state in which Diebold has signed contacts.

[DEMActivist]

9. So they claim copyright ownership in an election file?

"cobb-corrected-100102-backup.zip" is an election file for Cobb County, Georgia.

Ooooof, there it is - they think they own our votes. Isn't that comforting?

[AP]

13. actually, a collection of facts can be copyrighted (like a phonebook)

but that just means that you can't copy the phonebook and sell it or give it away.

If all the numbers in the phonebook were wrong, and the only way you could tell the world was by copying the phone book and going around and showing people, and asking people to confirm the numbers were wrong, then that's going to be fair use, I'd bet.

With that analogy, the phone book publisher might say, "well yeah, their intentions might be fair use, but the result is that lots of people are downloading saying their doing a check, but they're acutually going to use this information to make calls, circumventing our market."

The thing with these Diebold files is that, I would bet my life savings, NO COUNTY OR STATE OR PRIVATE INDIVIDUAL IS DOWNLOADING THIS DATA TO USE TO RUN ELECTIONS, THUS CIRCUMVENTING THEIR LEGITITMATE MARKET.

[wtmusic]

14. So technically they may be guilty of infringement

but Diebold would have to prove damages. Zero.

[AP]

17. That's not what I'm saying at all.

And I don't think you have to prove any damages to stop a copyright infinger.

The point is, that if it is fair use, it isn't infringement at all.

See my phonebook analogy.

[wtmusic]

20. 'circumventing their legitimate market'

would be considered damages.

[AP]

48. Granted, fair use is vague. However...

....what 4 really contemplates is whether your copy is displacing a sale because the potential customer took yours for free rather than bought it from the copyright owner.

This provision doesn't really kick in unless the first three don't. If the first three do kick in, then you're not occupying the market so this would be an irrelevant quesiton (ie, you'v ealready established you're not giving the porperty to potential customers).

[Mechatanketra]

28. A phonebook copyright doesn't apply to the phone numbers.

Just one note:

Several categories of material are generally not eligible for federal copyright protection. These include among others: ... Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)." -- U.S. Copyright Office

Phone books are often cited as an iconic example of such a "work consisting entirely of information that is common property". While all the additions to the phonebook (advertisements, explanatory text, etc.) is eligible for copyright, the raw list of directory numbers was not protected.

The real problem here is that no part of an election has any business being privatized -- being owned by anything less than the entire body politic. How elections work ought to be common property -- I'd think the moment that software was used in a federal election, those files ceased to be a Diebold document and became a federal document the people have a right to, just like the Senate record or presidential papers. (Of course, it fits right in with Republican administrations' record on presidential papers ...)

[AP]

45. The UK and a bunch of other countries have "data base rights'

Basically, it's a copyright in a database. It acknowledges the sweat that goes into compiling information. (But the UK also allows copyright in maps). I honestly don't know if there's a data base copyright in the US, which would definitely apply to the document mentioned above.

And I'm not sure if it would be treated as a phone book sort of copyright.

[starroute]

81. There is no database copyright law in the US (yet)

http://story.news.yahoo.com/news?tmpl=story&cid=581&ncid=581&e=2&u=/nm/20030905/tc_nm/tech_database_dc

Lawmakers in the House of Representatives are circulating a proposed bill that would prevent
wholesale copying of school guides, news archives and other databases which do not enjoy
copyright protection.

The bill has not yet been introduced but the Judiciary Committee (news - web sites) and
the Energy and Commerce Committee will hold a joint hearing on the bill in the coming weeks,
a Commerce Committee spokesman said.

Backers of the measure say it would allow database providers to protect themselves
against those who simply cut and paste their databases and resell them, or make them
available for free online.

Violators could be shut down and be forced to pay triple the damages they incurred.

[Generic Other]

47. The Freedom Of Information Act should kick in, or has it been repealed?

Bad publicity for Diebold should they pursue beyond the threat stage. Do they want an open public court case? Doesn't it hurt them more than they could win from suing?

[AP]

49. These files were on Diebolds server. These aren't gov't documents

which, I believe, what the FOIA covers.

Incidentally, this situtaion is like any other whistleblower sort of thing.

This is like if Lorillard got pissed that incriminating tobacco documents reached the press, and then they told the press they couldn't publish copeis of the documents because it violated their copyright.

Well, the press isn't selling these documents. They're commenting on them, and it's totally within fair use doctrine. It would be an absurd claim to bring.

The only reason a court wouldn't laugh Diebold's claim out of chambers is becaue of the internet angle. Everybody gets so excited about the internet. But if it were the press with these documents, and they had print outs and were passing them around to other press or printing up copies in the paper, nobody would say boo.

For example, if Buzzfalsh or MWO carried these doucments on their servers, and presented them as news and as resources for reporters, I don't know how Diebold would even begin to frame a lawyer's letter complaigning about it. It totally falls within the newsworthiness exception. It'd be the biggest news of the decade if we had an honest press.

[Zhade]

52. Thanks for the inspiration.

I've contacted websites about this development - since Diebold is trying to suppress information, what better way to fight back than to spread news about their tactics?

We'll see if Buzzflash, EPIC, EFF, WIRED, OSDN, Scoop, The Mahablog, Information Clearinghouse and What Really Happened mention this new twist.

[ParanoidPat]

65. Don't forget Slashdot!

:evilgrin:

[Eloriel]

82. Fair use has not, as far as I know,

included copying the whole thing -- EXCEPT for articles and similar when used in educational (and perhaps limited other) settings. Even teachers can't copy whole books to pass out. If I am a reporter, I certainly can't include a whole news article in MY article for the purpose of commenting on it.

Also, just to clarify that came up elsewhere in the discussion and wasn't IMO all that clearly dealt with: Copyright law protects one's creative works even when there is no profit motive inherent in the unauthorized use. IOW, if I write a poem, and someone puts it on their non-commercial website without my express permission (even with proper attribution), it's a copyright violation which I have every right to pursue if I had the money for attorneys.

Eloriel

[AP]

85. Eloriel, the extent to which something is copied is one part of the test

And entire works have definitely been given fair use protection. Pictures are a good example. And parodies often will use entire works in their parody.

If you're a photographer for a newspaper you can take a picture of Guernica to report that it has been damaged by a vandal. The newspapers are filled with copies of entire works. Another example is when people give speeches and the paper prints the entire text. You certainly have a copyright in your speech. But the paper can publish it as news if it's newsworthy (they couldn't, however, print the entire text of a David Sedaris reading, because that isn't newsworthy and it undercuts his market).

As for your poem example. Exactly. If your poem is available for free, it means people who might buy it will get it from the internet, Or, if they read it for free on the internet, they're less likely to pay to read it a second time.

[Eloriel]

87. MY POINT IS re Poem

THAT IT DOESN'T MATTER IF I HAVE THE POEM FOR SALE SOMEWHERE OR NOT OR PLAN TO HAVE IT FOR SALE SOMEWHERE OR NOT.

ONE of the "bundle of rights" is control over distribution, reprint and display, etc. (whatever the accurate wording is) COMPLETELY DIVORCED FROM ANY ISSUE OF FILTHY LUCRE.

And while you haven't responded as to whether you're an attorney or not, I do NOT think printing the entire text of a "newsworthy speech" is typically regarded as fair use.

In fact, there was a case several years ago where I think it was USA Today reprinted MLK's "I Have a Dream Speech" in its entirety on the occasion of whatever anniversary it was. The King family took them to court and won.

And I can tell you that if any newspaper or any other news outlet printed an entire speech I were to give somewhere WITHOUT MY PERMISSSION (or the granting of one-time right to do so, as the case mya be), I would be mad as HELL. I just don't think they have the right to do that under copyright laws -- unless things have changed dramatically since I researched the issue.

Your point about photos, etc., being reproduced in their entirety is well-taken. Obviously, I'm more interested (and therefore more often think in terms of) words -- i.e., print media.

Eloriel

[AP]

89. Eloriel, take a breath, forget about Dean, and turn off your caps.

My rule is not to divulge personal info about myself...got to go now so I'll take the rest of this up later.

[AP]

90. Oops. One more second.

MLK's family makes money off of selling copies of his speach. Reprinting that speach 20 years later isn't news reporting. Printing the entire speech the next day is news.

[Mairead]

53. Actually, a collection of facts such as a phone book CANNOT be (c)'d

Whence all these cdrom versions. Mere compilations cannot be protected by copyright. I believe the theory is that there's no creative component to them--it's a clerical process and anyone making such a list would necessarily produce a list indistinguishable from any other.

[AP]

67. You can't photocopy or scan the pages of the Yellow Pages

and sell them or give them away for free. The Yellow Pages have a copyright in the compilation of the phone numbers (the whole thing...the way they look on the page, the font, etc).

Nobody has a copyright on the individual numbers or the expressed idea of listing names with phone numbers. So you could write a new phone book by just lifting the infomration from the Yellow Pages and putting it in a new phone book of your own design.

In the UK, and a few other countries, when you compile datat that is of a different nature than phone numbers and names available to everyone, and you put the data together in a unique way, you have a data base right. It's supposed to encourage people to do socially valuable compliations of information by preventing people who didn't do the labour from taking the information you compiled and selling it. It doesn't mean nobody can use the information. YOu just have to go to the owner of the data base to get the information.

[sybylla]

71. This applies here too.

Though I am not, nor do I know anyone who is, a copyright law expert. Having spent the last fourteen years researching my family tree, I can tell you that compilations are copyrighted in the US, though the information they contain is not.

Example, someone goes to the county courthouse and obtains all the information on death records for a certain year in that county, then compiles it and publishes it. That produced material is copyrighted and you just can't willy-nilly make copies and distribute the work without violating copyright(excepting fair use).

On the other hand, my hubby writes software incorporating databases. His understanding is that while the software is copyrighted, the data contained in data files, like a .mdb file, is not copyrighted. There is also the issue of "work for hire" where the copyright is held by the customer, not the producer. Diebold, I'm sure licenses the software, but the databases it produces could be considered "work for hire" and be the property of the government agencies who produced it.

Copyright is tricky stuff, definitely a battle best left to lawyers.

on edit: grammar

[wtmusic]

21. There she is--what happened with your challenge, DA?

[DEMActivist]

22. We're still waiting for Georgia to produce

anything beyond the equivalent of a plastic "cardboard box."

So far, the only thing they'll allow me to touch is a Touchscreen machine with no software, no storage devices and no election data.

Diebold won't let us touch the software - confidentiality/trade secret agreement, doncha know?

I told the reporter that I would be right down with a hammer, screwdriver and hacksaw and he offered to carry the tools for me.

[wtmusic]

38. LOL

weirder by the minute. They'll be used in about half of CA polling places on Oct. 7.

Sounds like the reporter is onto it--maybe he'll help keep the issue alive.

[Zhade]

39. Early voting in 12 precincts in Los Angeles county - using DRE machines.

It's looking more and more like my fear, months back, that the recall would be another test run for BBV tactics is being realized.

[BevHarris]

15. Zhade -- I'm sorry to hear it. I am meeting with

a congressman tomorrow about the internal memos in which Diebold's principal engineer ADMITS that there is a security problem. I will be asking for a congressional investigation. I contacted Alan Dershowitz's office today to request help filing a lawsuit to pull the plug on these machines. We'll see what he says.

I also have feelers out to a young civil rights lawyer in Seattle. It's time to get serious.

Bev

[Zhade]

18. As noted on my mirror, I'm committed to this work.

Thanks for the commisseration. Best of luck tomorrow - I hope your audience listens to what you've got to say.

I'd be wary with Dershowitz. After all, this is the guy who contends that torture may be justified against terrorism suspects. Admittedly, though, I don't know else much about his current views aside from this.

You ever need backup, or anything, just let me know. We're all in this one together.

[wtmusic]

19. Bev - what happened with DemActivist's challenge?

[creativelcro]

75. lawyers

Hi, Dershowitz should be a very good ally on this cause. A close colleague of mine is a very good friend of his (they recently taught a course on law and ethics together). Let me know if I can do anything... -C

[LightTheMatch]

16. PM Me.

Hey -- PM me on this, I can help you out for the future.


Thanks.

[NewYorkerfromMass]

26. Diebold's Property? Diebold's Property?...FUCK DIEBOLD!

We bought the machines, the public owns them (all contracts and previous agreements to the contrary be damned!)
If these losers want to make money on the public's dime then everything about these machines should be PUBLIC.

[Andy_Stephenson]

91. I agree 100%

Diebold is doing an end run around Democracy. Who do the laws represent us or the corporations that wilfully break the law?

[ConsAreLiars]

31. "Use" ????

"The owner of the smashthetrifecta.com website does not have Diebold's consent to use any Diebold Property."

"1. To stop using and to immediately delete..."

Lawyerisms, I guess, but the common meaning of "use" is just that. This is a bunch of stuff to run elections with. Are you, is anyone, using Diebold's software to run elections? Are you cutting into their market by distributing their software to some sort of underground network of election operators? Has Diebold discovered anyone who ran an election using Diebold software obtained anywhere other than from Diebold?

[symbolman]

37. Go here now

and tell them everything:

http://www.eff.org/

they may just be the ones to help you.. the Electronic Freedom Foundation..

if they don't let me know.. I know someone deep in the bowels there that may be interested in this..

[Zhade]

42. FOLLOW-UP: Jim March's letter to Diebold

Jim sent this to Diebold's lawyers, my webhost, and myself.

(I'm going to take the opportunity to say, again, that I feel Jim should be allowed back on DU. WE NEED HIM!)


==================================================================================================


Ms. Reeves,

I read with interest your statement of alleged copyright/IP
infringement against the owner of the "smashthetrifecta" site:

http://www.smashthetrifecta.com/

and:

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=104&topic_id=323463&mesg_id=323463

The purpose of this missive is to inform you of several basic facts:

1) I am the individual who provided that site's owner with the files
in question;

2) The files are up on other sites in addition to that one; I fully
expect you'll try bullying them into submission too;

3) Ultimately, this will not work because I *will* continue to
distribute them under "fair use" principles.

I take this stance after repeated consultation with legal counsel.
Allow me to elaborate:

Copyright law cannot be used to hide evidence of a crime. Diebold has
clearly committed so many legal violations at this point, that
"unclean hands" principles apply in spades.

a) Diebold had, on their website and available for public download, a
copy of an elections data file created at 3:31pm on the day of the
March 5th 2002 primary elections in San Luis Obispo County. There is
no possible reason for that file to have been in Diebold's possession.
Under California law, it is illegal to release elections data before
the close of the election. I suggest consulting with the SLO County
Registrar, Julie Rodewald, to confirm the authenticity of this file
which I provided her.

b) California Elections Code 19205(c) prevents the Calif Secretary of
State from certifying electronic voting systems which are subject to
tampering. There is ZERO practical security at all on the GEMS data
management system. Anybody with a copy of MS-Access can alter voting
data, passwords and audit trails at will, without leaving any trace.
Worse, there is a runtime edition of MS-Access shipped on every GEMS
box (central vote-count computer system as used with all Diebold
Elections Systems products), which would allow exactly the same
alterations from a script executed via a dial-in connection through
the RAS server and Digiboard from a Touchscreen terminal, Optical Scan
terminal or standard PC/Laptop. We can prove that Diebold would have
enough access to the GEMS box in mid-election to "booger the vote" by
their possession of the SLO county data file referred to above.

c) Internal memos slipped to activists BY DIEBOLD INSIDERS (the
"1.8gigs of data" first referred to in Wired magazine) and in my
possession show that Diebold field tech support staffs noticed teh
"zero security under MS-Access" issue literally years ago, and
deliberately kept it quiet from county elections officials and state
certification boards. This constitutes pure criminal conspiracy.

d) The same internal memos reveal a widespread pattern of installing
and using UNcertified versions of the various programs, both at the
terminals and central vote-count box (running the "GEMS" app and
related components).

e) While purporting to sell an application that operates under high
security standards, your clients have displayed technical incompetence
in security matters at a level seldom seen outside of a "Dilbert"
comic strip.

To recap: your clients have set out to secretly rig elections. They
have installed features into their software making it deliberately
open to tampering in ways that defeat the usual "spot recount of
random precincts" procedures of honest local elections officials rely
on.

Your clients actions are literally horrifying, evidence of nothing
less than a coup attempt in progress. You will be hearing from me
tomorrow by phone; if it is your client's intent to sue me, I will
facilitate that at the earliest possible convenience, in order to rape
them in discovery and depositions and annihilate them in court.

You see, Ms. Reeves, sometimes when you push people around, you run
into somebody who's had about enough and isn't going to back down.

I hate bullies. With a passion. I am going to *enjoy* our future
interactions.

I guarantee you your clients won't.

Jim March

Blind Carbon Copy to: a *whole* lotta people :).

[DEMActivist]

46. LOL, ya think Jim's just a little bit angry?

What was it he said on his web page?

Oh yeah ... "Bring it on. Make my day. Bite me."

Bwahahahahahahahhahahaha! Another Blackboxvoting.org Activist Hero.

[Vadem]

51. I just sent an email to Jim asking for his hand in marriage!

Yep, he is a man after my own heart: courageous, raspberries to those in power and telling them to bite him! LOL

[Eloriel]

83. Damn. Beat me to it.

ROTFL.

Now THAT is the brassiest thing I've seen in a WHILE. (No, not you Vadem -- Jim.)

GO JIMBO!!

Eloriel

[AP]

50. People, don't ever send letters like this until you've really talked

to a lawyer, and let the lawyer write it, for godssake.

You never know when you're going to say somethign that can be used against you.

Did Jim REALLY talk to a lawyer? It sounds like he might not have.

Also, don't confuse anything you read here with real legal advice. This is just shooting the shit with people who aren't qualified to practice law in your state. It would be foolish to rely on this information.

[Mairead]

54. I saw a couple of no-nos in that letter, too.

I suspect he got carried away by his anger, always a bad idea

[AP]

68. By the way, with fair use, you have to begin from the position

that you thought it was fair use. It can't be a safe harbor for people who started off intending to infringe. If you didn't know that, you could find yourself revealing your intent in a hotheaded letter like this one and blowing your entire claim out of the water.

[althecat]

56. I am sure he has talked to his lawyers... moreover..

What speaks volumes in this context is the fact that they have not sent their letter to Jim.

If they really wish to protect their copyright it would make sense to attack the source you would think.

al

[never cry wolf]

59. Regarding getting Jim back on DU

I posted on ask the admins here: http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=120&topic_id=3613

This was Earl G's reply" Banned members don't get "voted back onto the island."

I supposed that he would have to use a new email address and name.

on edit: not that I advocate breaking DU rules.

[bitchkitty]

62. What did he do that

was so terrible?

[ParanoidPat]

69. He spent too much time trying to protect our right to vote....

....and not enough time engaging in candidate flame wars I guess! :shrug:

[bitchkitty]

72. Hmm, well we can't have that can we...

It seems as though if the majority of the community, especially those who donate to DU, wanted him back that they would let him back. Salon used to suspend people for I forget how long. I was suspended once for letting a wingnut bait me into the "3 post" rule.

[ParanoidPat]

79. Don't hold your breath....

....according to a post in the 'Ask the Administrators' forum asking for Jim's reinstatement, EarlG, ADMIN, Stated rather bluntly "Sorry, Banned members don't get "voted back onto the island." Ironic choice of metaphor when you consider how much Jim's done to make sure our votes COUNT when we vote to remove Bush* from the island! x(

[BevHarris]

80. Look, gang -- This is DU not Vote Central -- I don't object to the ruling

The policy of keeping DU for primarily Democratic and progressive political views protects us from a lot of wasted time debating the same tired stuff over and over again. Jim March is great, but he is also very active on the blackboxvoting.org forum -- and of course, he has a new gun forum if you're interested.

I take my hat off to him for his courage, but Democratic Underground has a specific mission. It behooves us to let them follow it -- note that the policymakers here have done very good things to reduce flamebaiting threadlocking stuff, in an even handed and fair way, and there are good reasons for the policies on political views.

Jim is pretty irrepressible. He's gonna talk guns, politics and voting wherever he is. We can transfer his more fascinating posts from BBV.org when we see them, or you can go there.

You might want to sign up to become a Black Box Activist, which gets you into some of the private forums. Jim is very active on those too.

Love ya,

Bev

[Zhade]

92. It's just a shame that he can't be here. DU needs his voice on this.

NT!

[Eloriel]

84. Well, I sure hate to defend an answer like that -- but I can

explain it maybe.

The routine is -- or at least has been -- that banned people are supposed to write to admin and ask. That's the way it worked in the past, anyway.

I thought he got overly whatever re gun rights?

Eloriel

[TacticalPeek]

78. Right the f*** on!!!

:dem: :dem: :dem:

[incontrovertible]

88. Mr. March: Sue THEM

For defamation of character by insinuating you're illegally trafficking in their copyrighted material. Find any cheap lawyer with 10 minutes of time, or hell, file it yourself. They'll have to deal with you at that point.

[shirlden]

57. Keep kicking

:kick:

[Nlighten1]

58. Put these files in Kazaa

I think it is the only way to get them around.

[JenBryan]

60. Confidentialness of DMCA Complaint

There was a note at the end of the email from W&J to the effect of the email to Drak Net being confidential. However, my service host included the letter by accident (?) in the CC: back to Deibold.

Actually, that wasn't by accident.

While we're hamstrung by the DMCA regarding whether we can choose or not choose to honor these notifications, the DMCA does allow us to share complaints with the owner of the sites and we forward *any* DMCA complaint in full to the people that own the site.

Email disclaimers do not technically make anything confidential - they sent this email to my support department (where several people have access and to an email address that we specifically state any emails sent to are NOT and will not be considered confidential on our contact page), and to boot it was addressed to the wrong company.

If they wanted it to be confidential, they should have made the effort to send it through the mail, or fax it. Or send it to the correct company, even.

In other words, I could give a crap about whether they claim it's confidential. They sent it to the wrong company, to an email address that dumps the email into a ticket database seen by two companies, and sent it to an email address that was specified as not being confidential in any way, shape, form, or fashion.

They should have worked harder if they wanted it kept confidential.

Jen Bryan, Owner
DrakNet

[DEMActivist]

63. Welcome to DU Jen!!!!

Thanks for setting that straight.

Can you give us an idea how you folks look at stuff like this? Were you given no option once the letter was received?

I'm just trying to understand what the rest of us can expect from our hosting companies on these issues and what we can do to work together.

[JenBryan]

66. DMCA Stuff

Once the DMCA complaint is made, it's not up to us to judge the legitimacy of the complaint. We can't make a judgment call on anything other than whether or not the complaint meets all the required DMCA criteria - then we have to yank the material or we can be held legally liable along with the site owner.

It is a truly heinous Act that, in my opinion, makes it all too easy to get information shut down because you have to shut it down first - and then fight to get it back up. With the DMCA, you are presumed guilty. Period.

We can be served with a counter-notification from the site user which we also have to abide by - they would send it to us, and Diebold that they're putting the material back up and are arguing the validity of the complaint. Information on counter-notification is on our site here:

http://www.drak.net/dmca.html

Then Diebold would have 10-14 days to get an injunction or whatever it is they have to get to prevent the material from being re-uploaded. If they don't get it, the site goes back up - they can't just make another DMCA complaint, they have to go to court if the site owner counter notifies.

Personally, I've never had anyone counter-notify, so I'm not sure how bad it can get. Most people just move the site somewhere else and site jump as the big companies chase them from site to site, as it's cheaper then going to court.

Jen
DrakNet
A "yellow dog" Democrat

[Zhade]

76. Thank you for weighing in, Jen.

I truly appreciate you taking the time to clarify this for all of us. Would you be comfortable with your two posts here going up on my site, to further flesh out the story?

This is a pretty awesome site, by the way, if you feel like sticking around!

[bitchkitty]

61. Holy shit -

that was fast! I really didn't think they would/could react if a lot of people had it mirrored. So many people have downloaded those files by now! I wanted to mirror them, but I had so much trouble uploading them to my site (dialup) and couldn't get to my sister's DSL connection. Best of luck if you decide to fight it. I'm pretty much poverty level at this point but if you need it I can scrape up some change and donate to your defense fund.

edit: spelling!

[donsu]

74. kick

nt

[Vadem]

86. kick

:kick:

[wtmusic]

93. This thread rocks

I gotta say, this is one of the most enlightening, valuable threads I've ever seen on DU. Thanks for putting it up and all your hard work Zhade. Lots of great information, and debate.

[WaterDog]

94. Kicky kick kick

Kick

:kick:

[laylah]

95. bounce

:bounce: Keep up the good work, Z and BH! Thanks for all of your hard work!

jennifer