Q: David, what's your involvement in OPG v. Diebold?
A colocation client of ours, indybay, was given a cease-and-desist for hosting a website that contained a link to the content that Diebold alleges infringes their copyright. OPG was contemporaneously served a cease and desist - we were asked to shut down a client's server because one of their hosted websites contained a page with a link to content that Diebold alleged to be infringing. To make things wierder yet, Diebold is claiming that the content may or may not be true - i.e., that they may or may not have composed it. (Quick legal news flash: you can't sue someone for violating your copyright if you are not representing the author of the work!) When OPG consulted with its lawyers, we determined that the cease and desist request was wholly without merit, given both the probability that the underlying material was non-infringing and that OPG could not be held liable for the linking actions of one of its clients (tertiary infringement).
Diebold proceeded to defy sensibility and the law when they decided to send a cease and desist letter to OPG's upstream ISP, Hurricane Electric. They were effectively requesting that Hurricane Electric terminate its contract with OPG, shutting off hundreds of colocated clients and over a thousand not-for-profit websites, all because one of OPG's clients was hosting a page that had a hyperlink to content that Diebold felt was infringing. In this manner, they threatened Hurricane Electric with quaternary infringement, which as far as I know is completely unprecedented. By having a specious basis in interfering with the contract OPG has with Hurricane Electric, they violated contract law, which prohibits third parties from tortiously interfering with the relationship between two parties bound by a contract. So that one of the things for which OPG is suing Diebold.
Q: What's the significance of this case?
There are many consequences for the Internet if this case is decided well. The following questions should hopefully be answered: Are ISPs liable for hyperlinks that their colocated clients put on their websites? Can you sue people for infringing copyright on a work for which you refuse to claim authorship? Can you send out cease-and-desist letters as freely as you wish? Can corporations use copyright as a defense to try and cover up a leak that is in the public interest, is not saleable content, and does not compete with the company?
If the case goes well, it will mean that companies will be more careful with their cease and desist letters. They will only send them to parties directly involved in alleged infringements. This will protect small ISPs and Internet cooperatives. It will also hopefully lead to an increased understanding of copyright, which was not created exclusively to make people rich, or even to give them infinite control over their works, but rather to strike a balance with the public's interest. That's the reason for which copyrights and patents were created: to maximize the benefit to the public. If there were no patents or copyrights, there might be less inventing, which would mean the public wouldn't maximally benefit; so systems were created to help make sure that inventors could have some temporary exclusive reward for their creations, after which their works fall to the public domain. This was deemed a balance that best benefitted the public.
Unfortunately, this philosophy seems to have all but evaporated. Such talk sounds almost socialist in nature these days; copyrights (and patents) feel like a tool, good for life (plus 70), to wield against the public, not for the public. They are a "right to make money", and there's really no discussion of what's in it for the public. The public did, after all, create the government by the people and for the people that created and maintains copyrights and patents. If the balance is swaying unfairly in one direction, it's within the powers, rights, and responsibilities of the people to correct that balance and reform trademark and patent law to a balance that makes more sense for the public interest.
Q: How is this different than other cease-and-desist orders involving website content the suing party finds objectionable?
Most cease and desist orders for copyright infringement cover content that
is: clearly owned by the claimant, directly competes with a product offered by claimant (e.g., MP3 vs
CD/iTunes), in which the content has clear monetary value (e.g., people pay money for
CDs/iTunes), and in which the content has no clear public interest, the content is not being used in a journalistic / academic context.
In this case: the claimant does not claim ownership, the content does not compete with a product owned by claimant, the content has no clear monetary value, the content has CLEAR public interest (what could be more public interest than understanding the flaws in how voting, the central tenet of a democracy, works?), and the content is being used in journalistic and academic contexts.
Q: If Diebold wins, what does that mean for online free speech?
Even if we were to lose on the content not being copyrightable, it is very likely that we would win an injunction against Diebold for cease and desist letter concerning tertiary and quarternary infringement. It is hard to imagine losing that part of the case. If we did lose the copyright part of the case, it would be quite a loss for the public, as it would continue the current lamentable trend of reducing "fair use" to a meaninglessly small subset of use cases.
Judge Jeremy Fogel of the federal district court in San Jose hears Case Number C-03-04913 JF today, November 17, 2003.
Monday, November 17, 2003
