OPG v. Diebold
, 337 F. Supp. 2d 1195
(N.D. Cal. 2004
), more officially known as Online Policy Group
, Nelson Chu Pavlosky
, and Luke Thomas Smith
v. Diebold, Incorporated
and Diebold Election Systems, Incorporated (now Premier Election Solutions
), was a lawsuit involving an archive of Diebold's internal company e-mails and Diebold's contested copyright claims over them. The Electronic Frontier Foundation
and the Stanford Cyberlaw Clinic
provided pro bono legal support for the non-profit ISP
and the Swarthmore College
United States District Judge Jeremy Fogel ruled that the plaintiffs' publishing of the e-mails was clearly a fair use, and that Diebold had misrepresented its copyright controls over the work, putting them in violation of section 512(f) of the DMCA and leaving them liable for court costs and damages. This was the first time 512(f) had been enforced in court, and set a precedent.
The Online Policy Group
The OPG, a free donation-based web host run by Roger Klorese
, David Weekly
, and Will Doherty
was hosting the website for SF Bay Area Indymedia
) when a story linking to the Diebold e-mail archive
was posted to Indybay. The link wasn't a direct link to the e-mail archive: upon reaching the linked page, the reader had to click another link to download the memos themselves. Diebold sent legal threats to OPG, asserting that the memos were copyrighted and that Indybay was committing tertiary infringement by linking to a link to the Diebold memos. When Indymedia and OPG refused to act, Diebold sent legal threats to OPG's upstream ISP, Hurricane Electric
(HE), effectively accusing HE of quarternary copyright infringement. This threat prompted OPG v. Diebold.
The Swarthmore Coalition for the Digital Commons
Smith and Pavlosky posted the actual e-mail archive to the SCDC website in an effort to keep the memos available to the public. Diebold sent legal threats to Swarthmore College, asserting that the students were directly infringing upon their copyrights.