Page 15881234710Page 2Page 3Page 4Page 5Page 6Page 7Page 8SearchTermPage 9Page 10Page 11Page 12Page 13Page 14Page 15Page 1612345678910111213141516171819202122232425262728Case No. C 03-04913 JFORDER GRANTING IN PART AND DENYING IN PART CROSS-MOTIONS FOR SUMMARY JUDGMENT(JFLC1)DESIGNATED FOR PUBLICATIONIN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF CALIFORNIASAN JOSE DIVISIONONLINE POLICY GROUP, NELSON CHUPAVLOSKY, and LUKE THOMAS SMITH, Plaintiffs, v.DIEBOLD, INCORPORATED, and DIEBOLDELECTION SYSTEMS, INCORPORATED, Defendants.Case Number C 03-04913 JFORDER GRANTING IN PART ANDDENYING IN PART CROSS-MOTIONS FOR SUMMARYJUDGMENT[Docket Nos. 51 & 57]The parties have filed cross-motions for summary judgment seeking a determination as towhat constitutes proper use of the internet service provider safe harbor provisions of the DigitalMillennium Copyright Act. The Court has read the briefing submitted by the parties and hasconsidered the oral arguments of counsel. For the reasons set forth below, both motions will begranted in part and denied in part.123456789101112131415161718192021222324252627281 See, e.g., “Voting Machines: Good Intentions, Bad Technology,” THE ECONOMIST, Jan.24, 2004, pp. 30–31; “Securing Electronic Voting: California Takes Steps to Safeguard System,”SAN JOSE MERCURY NEWS, Feb. 6, 2004; Tom Zeller, Jr., “Ready or Not, Electronic Voting GoesNational,” NEW YORK TIMES, Sep. 19, 2004,http://www.nytimes.com/2004/09/19/politics/campaign/19vote.html?ex=1096611569&ei=1&en=c490a5e466b682e3. See also American Ass’n of People with Disabilities v. Shelley, 324F.Supp.2d 1120, 1128 (C.D. Cal. 2004) (upholding the decision of the Secretary of State ofCalifornia to decertify and withdraw approval of some Diebold electronic voting machines on theground that the machines were not yet “stable, reliable and secure enough to use in the absence ofan accessible; voter-verified, paper audit trail”); Stuart Pfeifer, “State Joins Suit over VotingMachines,” LOS ANGELES TIMES, Sept. 8, 2004,http://www.latimes.com/news/local/la-me-machines8sep08,1,384118.story.Case No. C 03-04913 JFORDER GRANTING IN PART AND DENYING IN PART CROSS-MOTIONS FOR SUMMARY JUDGMENT(JFLC1)2I. BACKGROUNDDefendants Diebold, Inc. and Diebold Election Systems, Inc. (collectively “Diebold”)produce electronic voting machines. The machines have been the subject of criticalcommentary.1 Both the reliability and verification procedures of the machines have been calledinto question, in part because not all of the machines provide a means for verifying whether avoter’s choice has been recorded correctly. It is undisputed that internal emails exchangedamong Diebold employees (the “email archive”) contain evidence that some employees haveacknowledged problems associated with the machines. See Plaintiffs’ Motion for SummaryJudgment, pp. 3–4. According to Diebold, the email archive also contains discussion of “thedevelopment of Diebold’s proprietary computerized election systems, as well as Diebold tradesecret information, and even employees’ personal information such as home addresses and cellphone numbers.” Defendants’ Motion for Summary Judgment, p. 9. At some point early in2003, the entire email archive was obtained and reproduced on the internet by unknown persons,giving rise to the events pertinent to the present motions. Plaintiffs Nelson Chu Pavlosky (“Pavlosky”) and Luke Thomas Smith (“Smith”) arestudents at Swarthmore College (“Swarthmore”). Using internet access provided bySwarthmore, which for present purposes is considered their internet service provider (“ISP”),Pavlosky and Smith posted the email archive on various websites. See Declaration of NelsonChu Pavlosky in Support of Plaintiff’s [sic] Application for Temporary Restraining Order and for123456789101112131415161718192021222324252627282 OPG asserts that the “IndyMedia website resides on a webserver co-located with OPG. ‘Colocation’ means that the San Francisco IndyMedia server is not owned or controlled by OPG;it simply resides in physical premises leased from OPG alongside OPG’s own servers andutilizes OPG’s Internet connection.” Complaint, p. 3:24–27. OPG further asserts that, because itdid not control the IndyMedia server, “instead only providing Internet connectivity to thatcomputer through colocation, OPG could not comply by merely disabling or removing thehyperlink and related information demanded by Diebold. OPG’s only option to comply with thedemand was to cut off IndyMedia’s Internet connectivity entirely.” Id. at 5:1–5. OPG alsoasserts the same reasoning with respect to its relationship with Hurricane. Id. at 5:25–28. Theparties do not dispute that OPG and Hurricane could have utilized the DMCA’s safe harbors hadthey disabled IndyMedia’s and OPG’s internet connectivity, respectively. Accordingly, for thepurposes of the present litigation, the Court will assume without deciding that OPG isIndyMedia’s ISP and Hurricane is OPG’s ISP. The technical distinction does serve to illustratethe ramifications for free speech of Diebold’s demands.3 PUB. L. NO. 105-304, 112 Stat. 2860 (1998); 17 U.S.C. § 512; Section 202 of theDMCA.Case No. C 03-04913 JFORDER GRANTING IN PART AND DENYING IN PART CROSS-MOTIONS FOR SUMMARY JUDGMENT(JFLC1)3Preliminary Injunction (“Pavlosky PI Decl.”), ¶ 5. An on-line newspaper, IndyMedia, publishedan article criticizing Diebold’s electronic voting machines and containing a hyperlink to theemail archive. See Plaintiffs’ Motion for Summary Judgment, p. 5. Plaintiff Online PolicyGroup (“OPG”) provides IndyMedia’s internet access.2 OPG, in turn, obtains internet accessfrom an upstream ISP, Hurricane Electric (“Hurricane”).In response to the activities of Pavlosky, Smith, and IndyMedia, and in an alleged effortto prevent further public viewing of the email archive, Diebold sent cease and desist letters tomany ISPs, including Swarthmore, OPG, and Hurricane, pursuant to the safe harbor provisions ofthe Digital Millennium Copyright Act (“DMCA”).3 Swarthmore, OPG, and Hurricane wereadvised that pursuant to these provisions they would be shielded from a copyright infringementsuit by Diebold if they disabled access to or removed the allegedly infringing material. Swarthmore thereafter required Pavlosky and Smith
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