Student Accused of Violating Copyrights

Derek A. Slater ’05 is in trouble with Harvard for sharing copyrighted material.

But he’s not accused of using Kazaa, Morpheus or their music industry-defying close cousins.

In fact, his copyright infringement woes don’t even involve music.

Rather, Slater received a cease-and-desist letter from Harvard on Oct. 31 after posting thousands of internal documents about an electronic voting machine manufacturer on his Harvard-hosted website.

The memos, which are widely available on the Internet, discuss software and security flaws in Diebold Election Systems’ 33,000 machines across the country.

Diebold has claimed that the posting the documents—which were stolen by a hacker in March 2003—is a copyright violation.

Slater said the University has disabled online access to the documents.

And Slater says he will now have to convince the University that he has not violated Diebold’s copyright or risk having a copyright violation on his student record—two of which will result in the loss of University network access for a year.

In its fight to have the documents taken off the Internet, Diebold is citing the Digital Millennium Copyright Act (DMCA) of 1998, which has been used most prominently against music sharers.

The DMCA treats universities as Internet service providers, and thus requires them to act in cases of possible copyright infringement or risk liability, said John G. Palfrey ’94, the executive director of the Berkman Center for Internet and Society at Harvard Law School.

Swarthmore and MIT have also removed the Diebold documents from websites of electronic voting advocates at their institutions.

Slater said he obtained the documents from a page maintained by Swarthmore College students.

“These documents are potentially important to our democracy and the integrity of our voting system,” he said. “It’s necessary to spur debate.”

But Diebold spokesperson David Bear said his company has the right to protect its own documents.

“We reserve the right to protect that which we feel is proprietary,” Bear told The New York Times last week.

Slater and Palfrey questioned the invocation of the DMCA to force the removal of the documents, saying Diebold was misusing the law.

“I think it’s both regrettable and inappropriate to use the copyright law to stifle this political speech,” Palfrey said.

He said that the case for copyright infringement is hardly airtight against Slater, an affiliate of the Berkman Center.

The DMCA uses four criteria to decide whether copyrighted material can be made freely available, Palfrey said. These include the purpose of the infringement, the nature of the material, the amount of material used and the potential effect on the documents’ market, he said.

Palfrey said that Slater’s case against claims of copyright infringement are bolstered because the documents were used in an academic and not a commercial manner and they were factual—not creative—works. He added that Slater did not damage their market value because Diebold never intended to sell the documents.

“Derek has a very strong fair-use case,” Palfrey said. “I think the University should be, and is, open to students asserting their rights under the law.”

Slater said he has been consulting Law School faculty to consider options for fighting the University’s classification of the documents as copyright violations.He said there has been no date set for a hearing, and that he was not aware of any formal process for making decisions on copyright infringement.

Kevin S. Davis ’98, the coordinator of residential computing for the Harvard Arts and Sciences Computing Services (HASCS), said last night be could not comment on individual students’ violations.