Ping (zestyping) wrote,

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Today, Cindy Cohn is my hero.

Lots of driving: four trips to the south end of the Bay and back in one weekend. I did two trips on Saturday to visit my good friend Christopher Hendrie, who flew in for Google's Code Jam — let us all admire his l33t coding skillz. And then one trip yesterday to visit my pal Mark Miller for a heart-to-heart talk about life, love, and computer security. And then another this morning to the San Jose District Court to watch the OPG v. Diebold hearing.

Many students have been posting the leaked Diebold e-mail archive on their websites, and Diebold's response has been to send lots of threatening letters to students claiming copyright infringement. Diebold's lawyers also sent a letter to the Open Policy Group demanding that they remove hyperlinks to the archives from an IndyMedia site. So the EFF fought back by bringing suit against Diebold to stop them from chilling speech with this flurry of bogus legal threats.

This morning, Judge Jeremy Fogel heard the case at the Northern California District Court. When the case came up, six dull-looking Diebold lawyers with suits and big briefcases filed into the courtroom and took their places around the defendant's table, which they proceeded to cover with binders and papers. On the plaintiff's side were Cindy Cohn and Wendy Seltzer from the EFF, looking sharp and confident, armed with nothing but pads of paper and a big box containing a printout of the entire e-mail archive on paper.

Judge Fogel began by immediately challenging Diebold's claim that the EFF shouldn't be allowed to seek the injunction. The Diebold lawyer proceeded to argue that the posted e-mail messages were technical research materials (he even used the phrase "top secret" once, to the stifled laughter of the spectators) of immense value to Diebold's competitors, and that fair use couldn't cover the posting of the entire archive of documents wholesale (the students could have picked just a few messages for criticism, but they posted everything). To that the judge responded by arguing for the good guys: "If you're going to accuse them of quoting out of context, you've got to provide the context." The lawyer kept reiterating that they had not yet sued anyone or threatened to sue anyone in their letters, and that the First Amendment protected their right to send the letters.

The judge was much less confrontational and more cooperative when Cindy got up to speak. They agreed that the case being made was that the DMCA framework (counternotice and 14-day window) is not an exclusive remedy, and that the OPG was seeking a declaratory judgement as an alternative remedy. Cindy called attention to the four factors that determine fair use and argued that the defendant's claims of injury due to technical materials in the documents belonged in a trade secret claim, not a copyright claim. Diebold even told the press that they chose to make a copyright infringement claim instead of a trade secret claim simply because it was faster: the DMCA threats could get the documents removed immediately for 14 days.

Judge Fogel had two main reservations about granting the injunction. First, if he grants the injunction, then that basically decides the entire case in favour of OPG, and you're not supposed to grant final victory to either side just in a preliminary injunction. Second, he was uncomfortable with opening access to the entire e-mail archive when there's so much material that he couldn't read it all, and tried to find a way to separate just the important critical material. He proposed a smaller injunction that would allow linkers to feel safe (but not people posting the actual content), but Cindy wasn't satisfied with that and urged him to go all the way. She argued that there was zero market value in the expression of the e-mail archive, and so it wasn't actionable under copyright, only trade secret. The judge agreed that copyright action would not preclude a separate trade secret action — and Cindy assured the judge that Diebold would get them all back to argue a long trade secret case in front of him, to chuckles from the audience.

The highlights for me were when the judge himself brought up arguments from the EFF's side to counter the Diebold lawyer, and Cindy's description of the copyright threats as so unfounded as to not even pass the "giggle test". Judge Fogel also pointed out a couple of times that this was about the reliability of elections, and "you can't get much more public-interest than that".

Cindy totally rocked up there. Her arguments were clear, passionate, and compelling. She was always ready with the perfect response to shoot down the arguments from Diebold. In my opinion, she completely thrashed them.

On the whole, i think Judge Fogel understood everything very clearly and was pretty sympathetic to the good guys' side in the case. He may not be able to convince himself that the extraordinary step of an injunction is necessary, but i think he's likely to grant something that can been construed at least as a symbolic victory. He said he'd deliberate for a few days before giving a decision.

Update: Wow, that was fast. There's an article about it at the Mercury News. A woman from the AP exchanged a few words with me just after we walked out of the courtroom — i wasn't expecting her to quote me. I'm pretty sure the quote is not what i said, but it's close enough in spirit. Just goes to show you've gotta be careful when talking to the press, i guess.
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