[Seth-Trips] OPG v. Diebold in San Jose

Praveen Sinha ampere at swcp.com
Tue Nov 18 01:05:25 PST 2003

On Tue, 4 Nov 2003, Biella Coleman wrote:
> please do!
> biella so far in chicago
> > Since I'm actually near san jo' I'm really tempted to go and take notes
> > for my blog :P

Sorry for any double posts.  Feel free to correct any errors. 


A hyper linked version of this exists on

This is for any interested parties of the OPG vs Diebold hearing that was
held this morning.

A brief background of the case:  OPG (and the suborganization California
Community Colo Project) acts as colo to a variety of sites, including
partially sf.indymedia.org as well as evil-wire.org.  Sites host leaked
internal diebold memos annotating serious voting bugs amongst serious
concerns of institutionalized vote fraud.  Diebold sends OPG cease and
desist letters under DMCA provisions.  OPG sues back for declarative
judgement that the cease and desist letters are inpermissible under fair

I showed up in the San Jose Federal Court today as partly an interested
citizen, and partly one of OPG's "clients" who as asked to take down the
material in question from the evil-wire.org server.  The court building
itself was a creepy parody of Neal Stephenson's Fedworld- filled with
metal detectors, overly sensitive security guards, and with more scary
suits than unixbeards in a colo.  (I will give however, that a lot of the
hottie lawyer ppl can be fantastic eye candy while waiting for the boring
parts to finish... And oh the possibilites of sexual tension between
seemingly disparate intellectual views only find that love conquers all..)

The audience had a small number of reporters and digital civil liberties
types waiting for the hearing.

The first 3 hearings in the court seemed to be of various corporate
infighting.  Judge Jeremy Fogel of the Northen California Federal Court
distric rushed the cases along, as he announced he wanted to devote as
much time as possible to OPG vs Diebold case.

When the case was called up, a horde of lawyers (I guess around 6, plus a
CTO) representing Diebold went up to the stand, countered by Cindy Cohn
and Wendy Seltzer representing OPG.

For better or worse, Judge Fogel appeared to be one of the key behind the
scene players in the Silicon Valley- he was obviously a weathered veteran
of endless rounds of patent, expression, and trade disputes in the endless
circus that technology and law bring.

Judge Fogel opened up with statements about how the leaked Diebold memos
were of material of great public interest.  For a country that is now rife
with election fraud and right wing court packing, Fogel's opening
statements were remarkably lucid about how much was at stake about
electoral democracy.  I wonder how different the remarks would have been
were this not Northern California the case was heard in.

Fogel proceeded to grill the Diebold Representatives.

On a side note, Diebold's lead counsel in this case is Robert A.
Mittelstaedt of Jonesday. While I did not know this at the time he refused
to give me his card after the hearing (and thus preventing my voicing
distaste [I gleamed the contact info from a reporter if anyone is
interested]), Mittlestaet is also the lead counsel for ChevronTexaco in a
number of cases, including Bowoto vs ChevronTexaco- a case in which
Chevron is under fire for the Parabe incident in Nigera where massive
human rights violations and the deaths of activists occured.


Diebold's counsel proceeded on the following no brainer claims:
	- the material is copyrighted and hence amenable to DMCA take down
	- even if the material wasn't directly copyrighted, they are still
trade secrets, and the publishing of the material causes direct harm
to their business
	- Diebold is trying to silence the leaked memos, and not critiques
arising from the memos.  People publishing the memos are comitting
wholesale theft.

Fogel asked Diebold counsel whether any of the memos can be excerpted for
publishing for purposes of critique, to which Diebold replied "no".

Fogel flipped the question to the counsel - whether any of the memos were
excerptable for publishing, and possibly remove parts of the memo, to
which OPG replied "no".

Fogel then grilled OPG, whose counsel came up with the following response:
	- the material is that of vital public comment, as set by
precedent of leaked tobacco industry memos, pentagon papers, etc. and
falls well within first amendment and fair use issues.
	- as the memos fall under fair use, the use of the DMCA for take
down cannot apply
	- the question of trade secrets is not applicable to this case as
Diebold chose to use the DMCA for quick takedown of the memos
        [at which point the judge pointed out that both parties will be in
the courtroom again regardless of the end ruling, to the agreement of all

Fogel has set aside a good chunk of time for the ruling.  IANAL, however,
if the ruling falls on Diebold's side, then it seems the bar of difficulty
for whistleblowers getting their story out will be raised at least in
above ground channels.

If the ruling falls on the OPG side, then almost more interesting to me
from a legal perspective is the inevtiable dispute that will come after
this ruling. That is to say, free speech vs a context of trade secrets.  
I cannot think of any cases where this has been brought up before in such
a strong light in the States in the pre-internet era. The Bunner case is
one of consumer rights, whereas a ruling on this could truly decide just
how commerce-uber-alles the U.S. government is.  An interesting battle
 as the lives of American citizens fall more and more into monopolistic
commercial powers.


More information about the Seth-Trips mailing list