<i>OPG v. Diebold</i> chills DMCA chilling effects

In a decision that may put the brakes on DMCA takedown notices, the Northern District of California handed down Online Policy Group v. Diebold today.The case pitted Diebold, maker of controversial electronic voting technology, against two Swarthmore juniors who posted internal Diebold documents that cast the company and its voting software in a very poor light. Diebold cried copyright infringement and attempted to get the memos offline by sending DMCA takedown notices to Swarthmore and the Online Policy Group, which was providing colocation services for a mirror of the documents.

OPG and the two students, Nelson Pavlosky and Luke Smith, retained the EFF and Stanford's own Cyberlaw Clinic and sued Diebold. Their obvious claim - for declaratory judgment of noninfringement - got mooted: Diebold, when it realized what a mess it had gotten itself into, pulled a RIAA v. Felten and swore up and down that it wasn't actually planning to sue anybody.

The more interesting claim, though, came under section 512(f), a heretofore little-known provision of the DMCA granting damages and attorney fees to those wrongly accused of infringement by takedown notices. Diebold could not dig itself out of this one by backing down on litigation threats - 512(f) liability attaches as soon as the wrongful takedown notice goes out.

Judge Jeremy Fogel came down squarely on the side of free speech protections as he held, first, that at least parts of the posting clearly constituted fair use. "It is hard to imagine," he writes, "a subject the discussion of which could be more in the public interest." He rejected Diebold's argument that the posting of one copyrighted work (the email archive) affecting the market for a different copyrighted work (Diebold's broken e-voting software) weighed against fair use.

The next part was trickier. Section 512(f) requires that a sender of a takedown notice "knowingly...misrepresent[]..that material or activity is infringing." When, as here, the question of infringement turns on fair use - a vague standard determined on a case-by-case basis - how can anyone be said to know what the result will be in the future, when a court hears the case and decides? Judge Fogel solves the conundrum by expanding the definition of "knowingly" somewhat, ultimately finding that "[n]o reasonable copyright holder could have believed" that the archive posting did not constitute fair use, and that that causes 512(f) liability to apply in this case.

Basically, it's fair use, and it's so clearly fair use that Diebold should have known that it was fair even without a court telling it so. Under this standard, it's possible that there will be cases where a posting will be held to be protected by fair use, but not so clearly protected that a reasonable copyright owner should have known ahead of time. In such cases, there will be no liability for DMCA takedown notice abuse. The question in future 512(f) cases like this one might be: "It's fair use, but how fair is it?"

So where do we stand now?

  • The case moves into a damages and attorney fees phase. (I, for one, propose that Stanford's share of the fee award go to a scholarship - in Diebold's name, of course - for students interested in online free speech and electronic voting.)
  • The chillers are themselves chilled: content owners will have to seriously think through the consequences before sending a DMCA takedown notice. If they unreasonably assert that material is infringing, they'll get to help pay the salaries of the good folks at EFF. This case likely sounds the death knell for takedown-bots that send notices without human intervention.
  • Diebold is faced with a choice: Either accept the judgment and pay the damages, or file a highly publicized appeal - during election season. How would you like to be the PR flack explaining to the world why Diebold should be able to silence its critics at the same time its products help run what will be the most scrutinized election in American history?
  • Plaintiff Pavlosky says, and I quote, "I think my face might explode from grinning!"

Hold your face together, Nelson. And thanks for sticking through this.

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