Re: intellectual property (Re: Totalitarian Assumptions in I, Robot)

From: Thomas Buckner (
Date: Mon Mar 07 2005 - 04:30:19 MST

--- Phil Goetz <> wrote:
> --- Thomas Buckner <>
> wrote:
> >
> > ... long section on voting machine abuse ...
> >
> > Bear in mind that I am referring you
> specifically
> > to the fact that 'proprietary' status helps
> > protect corrupt use of the software/hardware
> to
> > steal elections, by thwarting transparency.
> > Sunlight being the best disinfectant, as the
> > saying goes.
> My understanding is exactly the opposite.
> Information is declared proprietary only when
> it
> is NOT legally intellectual property. To claim
> copyright on computer code, you have to send in
> a copy to the copyright office, which can be
> examined. Proprietary information is
> information
> that is kept secret, not information that is
> subject
> to intellectual property laws. At least, that
> is how we used it in my company.
> It is true that there is an exemption for
> computer
> code, saying that only the first and last 10
> pages
> (or something like that) need be submitted to
> the
> copyright office. But this makes proving
> infringement harder.
> As a rule: The existence of intellectual
> property
> laws encourages the revelation of details such
> as
> how voting machine works. The nonexistence of
> IP
> mandates secrecy. So Thom's long article on
> voting machines is a clear case in favor of IP
> law.
> - Phil

One might think that, if only the corporation
could somehow be called to account for excessive
zeal in the protection of its IP. However, see

in which " Congressman Dennis J. Kucinich (D-OH),
today, sent a letter to the Chairman and the
Ranking Member of the House Judiciary Committee
requesting that the Committee hold a hearing to
investigate abuses of the Digital Millennium
Copyright Act (DMCA) by Diebold Inc., one of the
nationís largest electronic voting machine

Recently, Diebold has waged an intimidation
campaign to repress circulation of employee
e-mails that raise concerns about the security of
its electronic voting machines. Since early
October 2003, Diebold has sent more than a dozen
cease-and-desist letters to Internet Service
Providers (ISPs) and universities that host
websites that either posted Diebold employee
e-mails or merely hyperlinked to other websites
with the e-mails. "

This article is dated 24 November, and as it is
one of my top Google results, we can safely infer
that Diebold's friends who run the Judiciary
Committee have not chosen to heed Kucinich.

The only inconvenience Diebold seems to have
suffered has been to send intimidating letters to
student websites which link to any material about
its software flaws, claiming the sites violated
the Digital Millennium Copyright Act:
"Diebold went the typical DMCA takedown one
better, though. Not only did it go after the ISPs
whose clients were posting the Diebold memos, it
also began sending cease-and-desist letters to
secondary sites that were reporting the
controversy and merely contained hyperlinks to
sites that were hosting the Diebold material. One
such website and its ISP refused to accede to the
DMCA takedown order and are being defended by the
Electronic Frontier Foundation.

In other words, not only are you subject to DMCA
takedown for what's on your own site, but you and
your ISP are responsible for what might be on a
site you link to. From a journalist's point of
view, this raises some interesting questions
about how one can fairly report this story and
provide readers with resources for making up
their own minds without incurring Diebold's

When I asked Diebold spokesman Mike Jacobsen
whether I could provide links to Diebold-targeted
sites as Blackbox Voting or Why-War, he
acknowledged I could but said that it was
possible I could get a cease-and-desist notice.
"I'm not saying we're going to do it, but you
would be at risk for getting a letter," he said.
"Anyone that's hosting a direct link to someone
hosting those files, we want them to understand
this is our stolen property and we want those
links to be removed. Looking at it from a legal
perspective, we were advised the DMCA was the
best resource for getting that done. All we're
really requesting that the links be removed from
the site, although it does seem that the ISPs
wind up taking down the whole site."

Of course, I'm probably going to have a long wait
for my cease-and-desist letter, because Diebold's
actions have backfired in a number of ways. A
mushrooming number of sites are now mirroring the
entire set of memos, and by claiming intellectual
property rights to them, Diebold has given
backhanded authentication to the material. But in
using the DMCA to try to suppress the debate
about its voting machines, Diebold has made
another tactical error - it's closed off the
discussion to all but its most virulent
detractors. Academicians or journalists who might
find evidence in the memos to debunk the more
sensational claims about stolen elections are
going to feel their hands are tied.

The Diebold controversy has raised a number of
troubling questions that can only be answered by
an unbiased, transparent examination of the
facts. Trying to avoid that examination through
questionable intellectual property will only
leave a lingering cloud of suspicion hanging over
the electoral process. And it proves yet again
that the DMCA is in practice totally antithetical
to everything Americans believe about how a
democracy is supposed to work."
Diebold seems to have lost that case, but it can
always try again after Republican lawyers have
made it impossible to sue a corporation in the
name of 'tort reform.'
'proprietary' is a word I have repeatedly seen in
reference to vote-counting software although it
is clearly under some sort of copyright; the
problem here is not that the companies fear
losing their secrets (for buggy, insecure Windows
software) to a competitor, but to the public
itself! The public would be better served by open
source software which could be examined for flaws
by anyone who knew how.
In summary, Diebold has used copyright to prevent
disclosure. Other clear examples are to be found
in the article I have repeatedly cited,
There are simply some things that should not be
done for profit and this is one of them.
Honestly, Phil, I ask you the same question I
have asked others in a similar debate: What would
it take to change your mind? How bad would X have
to get before you admitted X could become a
problem? If you cannot clearly imagine a
situation which would negate your present belief,
you might not recognize it in the real world.
Tom Buckner

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