Fordham Notes: Student Activist Tells How He Took On Diebold and Won

Tuesday, November 23, 2010

Student Activist Tells How He Took On Diebold and Won

A student who successfully sued industrial security giant Diebold spoke on Nov. 19 at Fordham Law about copyright law, free culture and privacy issues in an increasingly technological world.

When Nelson Pavlosky was an undergraduate at Swarthmore College, he sued Diebold in a precedent-setting case aimed at protecting freedom of speech from the abuse of copyright law.

In 2003, internal Diebold e-mails that focused on flaws in the company’s electronic voting machines were brought to light by hackers who retrieved them from the company’s computer network.

For example, in one message, an employee wrote that in the 2000 presidential recount, one district had recorded Al Gore receiving negative 16,000 votes. Another employee mentioned that when a voting machine would not cooperate during a demonstration, that employee would fake the results.

To alert the public to the problems with Diebold’s software, Pavlosky and his peers published the e-mails online. Diebold responded with a claim of copyright infringement and threats of legal action under the Digital Millennium Copyright Act (DCMA).

Pavlosky joined forces with the Online Policy Group (OPG) to file counter-litigation asserting that Diebold’s claim of copyright infringement was illegitimate.

Pavlosky argued that the e-mails fell under fair use copyright laws because:
• he wasn’t making a profit,
• it was in the public interest,
• the e-mails were not creative works,
• Diebold was not losing profits over the e-mails, and
• by publishing all 13,000 e-mails in their entirety, the public could discover for itself what information was troubling.

In the end, Diebold was found to have abused the DMCA by claiming a violation of copyright laws occurred when it knew no such violation actually took place—all in an attempt to restrain legitimate speech.

After winning the case, Pavlosky co-founded Students for Free Culture, a student activist group that promotes awareness about technology, copyright and free culture issues, affects changes in policy on the local and federal levels, and trains the next generation of activists. The group has branches at universities across the country, including Fordham Law.

—Jenny Hirsch

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