joegratz.net

As you may recall from this post, some incriminating internal memos were acquired from Diebold Election Systems, a maker of touch-screen voting machines. The memos show a number of incidents of improper behavior that, in addition to violating election laws, could have affected the outcomes of a number of elections. Understandably, Diebold wished to suppress the memos. They sent letters threatening copyright infringement suits if the memos weren’t taken down. Some recipients captiulated; others sued Diebold seeking a delcaration that the files were not, in fact, infringing.

Now, Diebold has filed this document with the court, withdrawing their threats of lawsuit, promising not to sue in the future, and promising not to bother the ISPs of websites hosting the files anymore. On one level, this is a victory; the memos stay up, and those hosting the memos won’t have to litigate. On another, this seems sort of unfair. Diebold sent out lawsuit threats that led a number of ISPs to shut down sites that Diebold didn’t like; when other sites called Diebold’s bluff, rather than having to prove their case, Diebold can just walk away. They can throw some “takedown” notices at the wall and hope that some stick. Most will. If they’ve got no case, they can just withdraw those takedown notices on which they receive “counter-notification” — which is the legal “bluff-calling” mechanism in this situation.

While this seems unfair, since it allows bullying without the costs of litigating the merits of the claims, it’s far better than the alternative, I think. If every counter-notification had to result in an infringement suit, there would be a lot more tenuous Internet copyright infringement suits litigated, costing innocent parties lots of money and leading to uncertain results. So, listen up, ’cause this is the last time you’ll hear me say it: The DMCA is making the right thing happen.