Online Policy Group v. Diebold, Inc.

ORDER GRANTING IN PART AND DENYING IN PART CROSS-MOTIONS FOR SUMMARY JUDGMENT

The parties have filed cross-motions for summary judgment seeking a determination as to what constitutes proper use of the internet service provider safe harbor provisions of the Digital Millennium Copyright Act. The Court has read the briefing submitted by the parties and has considered the oral arguments of counsel. For the reasons set forth below, both motions will be granted in part and denied in part.

I. BACKGROUND

Defendants Diebold, Inc. and Diebold Election Systems, Inc. (collectively “Die-bold”) produce electronic voting machines. The machines have been the subject of critical commentary. Both the reliability and verification procedures of the machines have been called into question, in part because not all of the machines provide a means for verifying whether a voter’s choice has been recorded correctly. It is undisputed that internal emails exchanged among Diebold employees (the “email archive”) contain evidence that some employees have acknowledged problems associated with the machines. See Plaintiffs’ Motion for Summary Judgment, pp. 3-4. According to Diebold, the email archive also…