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Swarthmore Students Re-Publish Diebold Memos

October 23, 2003 by

A group of Swarthmore students has published a damning series of internal memos from electronic-voting vendor Diebold. The memos appear to document cavalier treatment of security issues by Diebold, and the use of non-certified software in real elections. Diebold, claiming that the students are infringing copyright, has sent a series of DMCA takedown letters to Swarthmore. Swarthmore is apparently shutting off the Internet access of students who publish the memos. The students are responding by finding new places to report the memos, setting up what Ernest Miller calls a “whack-a-mole game”. (See, for example, posts from Ernest Miller and Aaron Swartz.)

Here is my question for the lawyers: Is this really copyright infringement? I know that copyright attaches even to pedestrian writings like business memos. But don’t the students have some kind of fair use argument? It seems to me that their purpose is noncommercial; and it can hardly be said that they are depriving Diebold of the opportunity to sell the memos to the public. So the students would seem to have a decent argument on at least two of the four fair-use factors. So it might be fair use.

Even if the students are breaking the law, what Diebold is doing in trying to suppress the memos certainly doesn’t further the goals underlying copyright law. A trade secret argument from Diebold would seem to make more sense here, although the students would seem to have a free-speech counterargument, bolstered by the strong public interest in knowing how our votes are counted.

Can any of my lawyer readers (or fellow bloggers) help clear up these issues?

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SunnComm's Latest

October 14, 2003 by

SunnComm is now taking yet another position regarding Alex Halderman’s paper – that the paper is just “political activism masquerading as research”. (The quote comes from SunnComm president Peter Jacobs, responding to a question from Seth Finkelstein.) Jacobs had expressed the same sentiment earlier, on an investor discussion board, in this vitriolic message, which he apparently tried to retract later.

[I can’t resist pointing out how hilariously wrong Jacobs is when he says that nobody affiliated with the EFF has ever produced any digital content worth selling. There are many counterexamples, starting with the three founders of EFF (Mitch Kapor, John Perry Barlow, and John Gilmore) who all became rich and famous by producing copyrighted works.]

As far as I can tell, what Jacobs is arguing, essentially, is that even though Halderman’s paper does not make any political argument, the paper might affect the public policy debate about DRM. What I don’t understand is why that’s a bad thing. It seems to me that an accurate, truthful research report has more merit, rather than less, if its results are relevant to a public policy debate.

To put it another way, Halderman stands accused of relevance, which can be a dangerous tactic for an academic to follow.

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SunnComm Says It Won't Sue Halderman

October 10, 2003 by

SunnComm, which had previously said it planned to sue Alex Halderman for publishing a critique of SunnComm’s CD anti-copying technology, has now backed off. According to Josh Brodie’s story in today’s Daily Princetonian, SunnComm president Peter Jacobs has now said the company has changed its mind and will not sue.

SunnComm is to be commended for deciding not to interfere with Alex’s right to speak. I hope SunnComm decides to join the debate now. If SunnComm wants to add anything, or to challenge anything that Alex said in his paper, I for one would like to hear from them.

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SunnComm Responds

October 7, 2003 by

Hiawatha Bray’s story in today’s Boston Globe reports on SunnComm’s response to Alex Halderman’s dissection of SunnComm’s CD copy-protection technology.

”There’s nothing in his report that’s surprising,” said SunnComm president Bill Whitmore. ”There’s nothing in the report that I’m concerned about.” Whitmore said his company’s system is simply supposed to give honest music lovers a legal way to make copies for personal use, not to stop large-scale piracy.

This is hard to square with SunnComm’s previous assertion that the technology offers “an incredible level of security”, that it “met the toughest standards”, and that it passed tests in which the “security level offered by the MediaMax technology was pushed to the limit.”

It’s also worth noting that if your goal is indeed “to give honest music lovers a legal way to make copies for personal use, not to stop large-scale piracy”, you can achieve this goal perfectly by offering ordinary, unmodified CDs.

UPDATE (Oct. 10, 10:50 AM): Don’t miss this satirical “story” at Kuro5hin.

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Story Time

September 24, 2003 by

In a speech today, John Fictitious, president of the Hospital Association of America, expressed his industry’s disappointment at the continuing prevalence of cancer in America. “Our industry stands ready to deploy a cure, but the doctors and drug companies have been unwilling to sit down at the bargaining table to work out a mutually agreeable cure,” he said. Spokesmen for the doctors and drug companies said they were always open to discussion, and asked for more details about the proposed cures and their side effects. But Mr. Fictitious accused them of foot-dragging: “The time for research and discussion is past. Cancer is widespread today. The simple fact is that the doctors and drug companies profit from cancer and would rather not make a deal.”

Congressional leaders expressed sympathy for the Hospital Association’s position. “We are very disturbed by the continued failure of the affected industries to reach an agreement,” said one senator. “If the industries cannot negotiate a solution to the cancer problem, we may have to step in and impose one.”

This is ridiculous, of course. Everybody knows that cancer is a scientific problem – it is an aspect of reality that cannot be negotiated out of existence and cannot be cured by government decree.

But substitute “copyright infringement” for “cancer”, “solution” for “cure”, “motion picture” for “hospital”, “Jack Valenti” for “John Fictitious”, and “software consumer electronics companies” for “doctors and drug companies”, and you get this story, which might have come from a recent newspaper:

In a speech today, Jack Valenti, president of the Motion Picture Association of America, expressed his industry’s disappointment at the continuing prevalence of copyright infringement in America. “Our industry stands ready to deploy a solution, but the software and consumer electronics companies have been unwilling to sit down at the bargaining table to work out a mutually agreeable solution,” he said. Spokesmen for the software and consumer electronics companies said they were always open to discussion, and asked for more details about the proposed solutions and their side effects. But Mr. Valenti accused them of foot-dragging: “The time for research and discussion is past. Copyright infringement is widespread today. The simple fact is that the software and consumer electronics companies profit from copyright infringement and would rather not make a deal.”

Congressional leaders expressed sympathy for the Motion Picture Association’s position. “We are very disturbed by the continued failure of the affected industries to reach an agreement,” said one senator. “If the industries cannot negotiate a solution to the copyright infringement problem, we may have to step in and impose one.”

Somehow, people who would see the fallacy clearly in the cancer story, seem to miss the same fallacy when the topic is copyright infringement. Technical problems cannot be solved by negotiation or by government decree; and trying to do so will only hold back the progress that might one day lead to a solution.

Why do so many people miss this point? That’s a topic for a later posting.

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