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Swarthmore Free Culture

Two teenage digital Davids down Diebold.

Making Progress, Emily Hawkins, Mar. 9, 2005

Two teenage digital Davids down Diebold.

By Emily Hawkins

Swarthmore College juniors Luke Smith and Nelson Pavlosky admit that they’re “a little computery,” but cringe at being dubbed computer geeks. After all, more than their tendency toward the technological, it was their belief in “free culture” and belief in the ability of the Internet to freely connect people, ideas, and information that led them to file and win a high profile lawsuit against Diebold Elections Systems.

Diebold, one of the country’s leading electronic voting machine-manufacturers, drew national media attention in March 2003 when a hacker broke into its computer system and discovered roughly 15,000 internal company memos outlining security flaws plaguing their machines.

The memos encouraged Diebold representatives to falsify security demonstrations for election officials. They also suggested that the company sold the machines to states despite its knowledge of these flaws. As of 2003, 37 states had contracts with Diebold to use the machines in the 2004 elections, including Florida.

Luke and Nelson got involved in October of 2003, when their friends, who led an anti-war student non-profit organization, posted the memos on their websites and subsequently received a letter from Diebold threatening them with a copyright infringement lawsuit. The letter claimed that the information in the memos was protected by the Digital Millennium Copyright Act (DMCA), which was passed in 1998 to protect companies from online piracy.

The two had already founded Swarthmore Coalition for the Digital Commons (SCDC), now called Swarthmore Free Culture, a collection of computer users, Libertarians, academics, and open source or free culture enthusiasts. The group meets regularly to take on the wide range of issues that fall under the heading of the intellectual commons, a laundry list that can include drug patents, music downloading, and Monsanto’s crop patents. So when the Diebold controversy came surging down the pike, the group found itself face to face with a serious crisis of the commons, rife with issues of free speech, access to information, and corporate abuse of power.

Already familiar with the DMCA, Luke and Nelson realized immediately what Diebold was up to. It was clear to them that Diebold was deliberately twisting copyright law in an attempt to control information rather than to protect authorship.

Luke, a Linguistics major who may double major in computer science, is quite capable of waxing eloquent on intellectual property law as it applies to the Internet. But he and Nelson took a stand not only because they feel strongly about promoting free culture, but because of the implications of Diebold’s actions.

“It is a question ultimately of control: will our media culture – which is our national culture and our common culture – will it be controlled by a few people at the top who basically broadcast to everyone, or will the Internet and peer technology allow for a much flatter and more participatory structure to how we do things?” Luke asked.

The duo posted the memos on the SCDC website. As Luke says, there is nothing “more in the public interest than information that pertains to the electoral system.” They felt strongly that Diebold was wrong to attempt to keep such potentially damning information out of public reach.

Luke and Nelson see themselves as an odd pair. Luke considers himself a progressive and could be described as your traditional lefty activist, while Nelson favors the Libertarian platform. Luke spent last semester removed from the movement, studying Buddhism and living in temples in Japan. Nelson, a Quaker who was involved in the anti-war movement, sees the Internet as a kind of personal printing press, which gives every person a voice and the opportunity to connect with others. They both see free culture as a movement to increase person-to-person communication.

A philosophy major from Morris Plain, New Jersey, Nelson says the free culture movement isn’t “just about computers. It was about something much bigger…It kind of touches on everything I guess, because for instance, millions are dying in Africa because they can’t get access to generic drugs and it’s kind of crazy that we’ve placed these abstract patents over the lives of millions of people. There needs to be some balance and we need to admit that.”

By the time Luke and Nelson got involved, Diebold had shut down all the websites around the country that had posted the memos, and, as far as Luke and Nelson knew, the SCDC site was the only one still posting the memos. So when the threats came from Diebold, Luke and Nelson were ready. With the 15,000 memos posted on their Swarthmore-hosted website, the school’s administration responded, as Nelson gently puts it, “cautiously.” The school felt that it risked being held liable for having copyrighted information on its website and strongly urged SCDC to take down the memos.

In an open meeting that started out as a small gathering of a few students and several Swarthmore deans and grew to about 70 participants in a matter of moments, Swarthmore students rallied around Luke and Nelson. As a result. the two hatched a two-step plan. They got fellow activists on campus and nationwide to take turns posting the memos so they could remain in circulation in the great intellectual commons of the Internet. Then they sought pro-bono legal representation and sued Diebold for abuse of copyright law.

Their initial reaction to Diebold’s threats had been pure terror. But quick thinking in how to proceed proved to be key in solidifying what many have called a victory for free speech. They managed to win by successfully activating a massive network of free culture enthusiasts around the controversy and soliciting help from lawyers at the Electronic Frontier Foundation (Wendy Seltzer) and at Stanford University’s cyberlaw clinic (Jennifer Granick and Laurence Lessig) who agreed to represent them for free.

“We were petrified,” says Luke. “We were scared out of our minds that Diebold was going to come and make our lives miserable. We were worried they were going to sue us out of house and home,” Nelson adds. “That turned out not to be feasible…We knew we were right and that their case was completely bogus…I learned that a lot of these corporations are bullies and if you stand up to them they back down. That’s what happened to Diebold. They’re multi-million dollar bullies.”

Luke and Nelson got into the free culture movement initially because of their shared interest in free software projects like Linux, which relies on massive collaboration between amateurs all over the world and has quickly become a major competitor for Microsoft in the server market. But they both have an amazing ability to explain the movement as something much larger, something that the least “computery” among us can grasp with ease.

For Luke, “the real appeal of free culture is that … it’s about building an information commons and protecting it. The way I think about it is it’s like how environmentalism managed to build a narrative around the environment, which never really existed before, that’s the kind of thing that we would need to build is the idea of the digital commons.” Ultimately, the free culture movement is about valuing people and the free exchange of ideas over profits.

When they learned of their victory, Luke and Nelson were not surprised, because by then they knew the law better. Last fall, Judge Jeremy Fogel of the U.S. District Court for the Northern District of California found that Diebold falsely claimed copyright violations when it could not have reasonably believed that such violations had occurred. Judge Fogel ruled that Diebold itself violated the DMCA by threatening to sue for copyright infringement in these circumstances. Judge Fogel thus granted judgment in favor of Luke and Nelson’s group. A ruling on their claim for money damages is still pending.

Still active in SCDC (now Swarthmore Free Culture), but thankful not to have to run the whole show themselves, Luke and Nelson are one step closer to achieving their goal of a true digital commons.

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