[CIMC-work] FW: [Imc-legal] Diebold, Rackspace, & the DMCA

[Chris Kaihatsu]

------ Forwarded Message
From: jeff <jeff at indymedia.org>
Organization: Indymedia
Reply-To: jeff at indymedia.org
Date: Wed, 15 Oct 2003 13:23:13 -0600
To: imc-legal at indymedia.org, italy-legal at indymedia.org
Cc: wendy at eff.org
Subject: [Imc-legal] Diebold, Rackspace, & the DMCA

IANALIAAT = I Am Not A Lawyer I Am A Techie

Overview
========
Diebold ( http://www.diebold.com/ ) is a US based manufacturer of touch
screen 
voting terminals. They have been highly criticised recently because anyone
who has ever launched MS Word realizes how easy it is for them to rig
elections. The code to some of their terminals was widely published on the
Internet in the last few months. It was studied by computer security folks
at 
Johns Hopkins Information Security Institute and found to be greatly flawed
( 
http://avirubin.com/vote/ ). Diebold executives are also known for giving
Republicans piles of cash and running fundraisers for them (
http://www.scoop.co.nz/mason/stories/HL0211/S00081.htm ).

Rackspace ( http://www.rackspace.com/ ) is a US-based ISP. They host the
ahimsa servers which host about a dozen IMCs (including Italy), some Free
Software mirrors, and a handful of other sites. The servers are "dedicated
servers" which means that Rackspace actually owns the hardware. Both the
servers and the bandwidth are rented. The servers themselves are located in
Rackspace's London, UK facility.

DMCA is the Digital Millenium Copyright Act (
http://thomas.loc.gov/cgi-bin/query/z?c105:H.R.2281.ENR: ), a Federal law in
the US. The DMCA is known for violating Free Speech, the US Constitution,
etc. See: http://www.eff.org/IP/DMCA/

EFF is the Electronic Frontier Foundation: "Defending Freedom in the Digital
World" ( http://www.eff.org/ ). They are activists/lawyers working on a
myriad of issues, including the DMCA. They help the IMC on legal issues.

Me: I'm a tech who administers the ahimsa servers, along with others. I
signed 
the contract with Rackspace, so I'm their primary point-of-contact.

Events
======
On Tue Oct 14 15:00:41 CST 2003 Rackspace opened a trouble ticket on the
ahimsa servers about a letter they received from Diebold's lawyers. Diebold
invoked 17 U.S.C. 512(d) ( http://www4.law.cornell.edu/uscode/17/512.html ).
Diebold claimed IMC Italy was linking to some copyrighted documents of
Diebold's. These documents were leaked memos that someone had published. The
documents themselves were not on Italy's servers, just the links.
The post:
http://italy.indymedia.org//news/2003/10/398377_comment.php

Diebold had managed to shut down some of the servers hosting the documents
but 
new servers kept springing up hosting the documents. Apparently the
documents 
are now on Freenet ( http://freenet.sourceforge.net/ ) which is "impossible"
to shut down.

A few hours after the trouble ticket was opened I sent a copy of the ticket
to 
the italy-legal mailing list. I heard back from one lawyer there, but Italy
hadn't made a decision what to do. I also let a few other folks know what
was 
going on.

The next day a different Rackspace employee opened a new trouble ticket
saying 
they were going to take down the server Oct 16 8:00AM CST if nothing was
done. Italy has now redacted the posts.


Now What?
=========
I spoke on the phone with Rackspace's AUP (Acceptable Use Policy) employee.
Rackspace is protecting themselves from legal liability. No surprise there.

Indymedia has the option of filing a counter-notice with Rackspace saying
that 
they don't think the documents are in violation of the DMCA. If Indymedia
does this, the server and the post can stay up--Rackspace won't shut the
server down. If a counter-notice is filed then Rackspace is absolved of
legal 
responsibility so they don't care what the content is. But then Indymedia
will most likely be threatened by Diebold and probably quite quickly...

So Indymedia can:
1) Do nothing now that things have been redacted. Rackspace and Diebold are
probably fine with things now (though I haven't heard back yet).
2) Work with EFF to get the documents back online and have a legal battle
with 
Diebold.

I would like to say that IMHO this is probably a battle worth fighting. It's
not like these are just some lame documents from some company no one has
heard of. Diebold is a big powerful company that directly affects US
democracy, free speech, etc. But IANALIAAT. ;)

Misc
====
One response that I've heard a few times is "but the server is in the UK
where 
the DMCA doesn't apply". Rackspace's response is that they are a US-based
corporation, so it doesn't matter.

I guess by Diebold saying that they are copyrighted documents that they are
implicitly implying that they are /authentic/.

-Jeff


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