The college students had published on-line a collection of company e-mails allegedly revealing flaws in its e-voting system, as well as problems in certifying the systems for elections. Diebold responded by sending cease-and-desist letters under America's Digital Millennium Copyright Act (DMCA).
The DMCA provides ISPs with a safe harbour in the event that they are hosting material that infringes copyright: if they remove the offending material within ten days of receiving a cease-and-desist order, they escape liability. In most cases, ISPs comply immediately.
Diebold sent dozens of the notices to web site publishers and ISPs which hosted sites publishing the documents, and even to those who merely published links to the documents, including the Online Policy Group.
The Online Policy Group did not comply, and instead went to court to obtain a temporary restraining order against Diebold. Its Colocation Director David Weekly explained:
"As an ISP committed to free speech, we are defending our users' right to link to information that's critical to the debate on the reliability of electronic voting machines... This case is an important step in defending free speech by helping protect small publishers and ISPs from frivolous legal threats by large corporations."
In a conference call on Monday between US District Court Judge Jeremy Fogel and lawyers for Diebold, OPG and the two students, Diebold decided not to press the copyright issue.
The company agreed to withdraw the cease-and-desist letters, and confirmed that it would not sue, or send further orders to any other party who published the e-mails in the future.
According to a report on Wired News, Diebold's spokesman, David Bear, warned that the agreement did not mean that the DMCA did not actually apply to the e-mails. "We've simply chosen not to pursue copyright infringement in this matter," he said.
Civil rights group the Electronic Frontier Foundation was representing OPG in the action. EFF staff lawyer Wendy Seltzer said, "We're pleased that Diebold has retreated and the public is now free to continue its interrupted conversation over the accuracy of electronic voting machines."
She added, "We continue to seek a court order to protect posters, linkers, and the ISPs who host them."
The case has now been put out to mediation, but a full hearing is set for 9th February.
Things may get worse for Diebold, following intervention by Congressman Dennis Kucinich. In a new web site, Kucinich links to the controversial e-mails, and states:
"Diebold has been using coercive legal claims to intimidate internet service providers and even universities to shut down websites with links to its memos and remove the memo content."
He adds:
"By abusing the Digital Millennium Copyright Act, Diebold has intimidated numerous internet service providers to comply with its requests. The damage is two-fold: 1) limiting the public's information about the security of its voting machines, and 2) expanding corporate control over our most free medium of expression, the internet."
Kucinich has now referred the matter to the House Judiciary Committee.