Background
Sometime in the spring of 2003 an unknown hacker broke into Diebold computers and obtained a large portion of their email archives, which was posted to various web sites. In an effort to quash the dissemination of information about security flaws in its voting machines, Diebold had sent dozens of DMCA takedown notices to various ISPs, all of which complied, except for OPG. Diebold sent takedown notices not only to sites actually storing the information, but also to those that merely linked to it. More specifically, Diebold sent DMCA notices to Swarthmore College, the ISP where the two students Nelson Pavlosky and Luke Smith had posted the 15,000 emails on their Swarthmore Coalition for the Digital Commons web page. Diebold also sent notices to the Online Policy Group, the ISP for an IndyMedia site linking to Pavlosky & Smith's web page, and also to Hurricane Electric, OPG's upstream provider. After Swarthmore complied and removed the material, Pavlosky, Smith and the OPG sued Diebold, "asserting the company’s accusation of infringement “was based on knowing material misrepresentation,” an actionable claim under a provision of the DMCA (17 U.S.C. 512(f)) and, furthermore, “interfered with contractual relations” between the students and their Internet service providers". Although Diebold withdrew their DMCA letters after a media backlash, the plaintiffs decided to pursue Diebold in court; before the trial, EFF's legal director Cindy Cohn said that "We think it’s important that the court make it clear that if you misuse the powers the DMCA has granted copyright holders, there are going to be serious consequences."
The OPG was a free, donation-based web host run by Roger Klorese, David Weekly, and Will Doherty; it was hosting the website for SF Bay Area Indymedia (Indybay) 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 quaternary copyright infringement.
Read more about this topic: OPG V. Diebold
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