00717-Decl of Weekly w Exhs

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Cindy A. Cohn, Esq. (SBN 145997)Wendy Seltzer,Esq.ELECTRONIC FRONllER FOUNDAllON454 Shotwell StreetSanFrancisco,CA 94110Telephone: (415) 436-9333xlO8Facsimile: (415) 436-99935 Alan Kom, Esq. (SBN 167933)LAW OFFICE OF ALAN KORN1840Woolsey StreetBerkeley,CA 94703Telephone: 510) 548-7300Facsimile: 510) 540-4821678

Attorneys for PlaintiffONLINE POLICY GROUP101121314

JenniferStisaGranick, Esq. (SBN 168423)STANFORD LA W SCHOOLCENTER FOR INTERNET & SOCIETY559 NathanAbbot WayStanford,CA 94305-8610Telephone: (650) 724-0014Facsimile: (650) 723-4426Attorneys for PlaintiffsNELSON CHU PA VLOSKY and LUKETHOMAS SMITH5

UNITED STATESDISTRICT COURT6FOR THE NORTHERN DISTRICT OF CALIFORNIA

18 No. C-O3-04913WNLINE POLICY GROUP,NELSON CHUPA VLOSKY, and LUKE THOMAS SMITH, etal.,9 DECLARATION OF DAVID E. WEEKLYIN SUPPORTOF PLAINTIFFS'MOnON FOR SUMMARY JUDGMENT)20 Plaintiffs, )

)v. )DIEBOLD, NCORPORATED,ndDIEBOLD ~ELECnON SYSTEMS, INCORPORATED, ))

21 Date: February9,2003Time: 9:00 a.m.Courtroom:322324 Defendants.2526 I, David E. Weekly, herebydeclareas ollows.27

serve as Colocation Director for the Online Policy Group ("OPG") and am a1.8-1-DECLARATION OF DAVID E. EKL Y IN SUPPORTOF-- - .


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member of the OPG Board of Directors. I make his Declaration n support of OPG's motion for2 summary udgment and t incorporates y referencemy previousdeclaration n this case n support

ofOPG's motion for temporary estrainingorder.OPG is a nonprofit organization with tax-exempt status under federal law. OPG is2.

dedicated o serving as the Internet Service Provider ("ISP") for groups and organizations hatWe strive to help achieve one Internet, with equal accessannot. fford commercial SP services.

'7 to all."OPG is funded through individual donationsand has a completely volunteer staff3.

9 and board of directors. OPG was founded n July, 2000.OPG provides a variety of Internet services,all for no charge, o other non-profit0 4.

organizationsand ndividuals in the United Statesand abroad. This includes website hosting andcolocation, a service where we provide connectivity to the Internet for a user but do not directly.213 host any content suchas a websiteor e-mail) for the user.

GPO also provides e-mail hosting, domain registration, computer refurbishing,4 5.Its focus is onechnical consulting and educational raining for organizationsand individuals.

providing services o those who would not otherwise be able to afford Internet servicesand the6constituenciest has argeted nclude the youth, elderly, disabledor ill individuals and those acing1issuesarising from their ethnic, cultural, religious, or sexual orientation.8 OPG also engages n

19 political and research activity in support of freedom of speech online and related issues.20 6. While OPG does not know the precise number, I believe we currently host over

1,000 websites altogether, including over 250 directly hosted websites and at least 750 on122 collocatedmachines.OPG hosts907 e-mail mailing lists, and over 64 domain names. It collocates

over 110 machines. Overall, OPG servesover 95,000 ndividuals who are either on email mailing3lists, havewebsitesor have domainshosted hroughGPO.4

OPG receives ts connection to the Internet from another ISP, called Hurricane5 .7.'upstream" provider. Attached to my6 Electric. In Internet parlance, Hurricane Electric is an

previous declaration in support of Plaintiffs' motion for preliminary injunction as Exhibit "A" is a728 true and correct copy ofOPG's contract with Hurricane Electric.

-?- -- - - --- __1!1"':"':DECLARATION OF DAVID E. WEEKLY IN SUPPORTOF .:


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8. Under its contract with Hurricane Electric, OPG pays Hurricane $3,457 per month2 for its Internet connection.3 9. OPG's relationship with Hurricane is also a colocation arrangement. mportantly,4 because he actual websitesand other infonnation that OPG and its usersoffer online is storedon

their own computer and not on any computers owned or controlled by Hurricane Electric,6 Hurricane Electric has no ability to selectively filter websites, links, postings or any other7 infornlation on OPG's own or collocatedservers. ts only ability to preventOPG or one of its users8 from linking to the archive, as Diebold demandedn its letter, was to pull the plug on all internet

connectivity for all of GPO's users. Thus, Diebold's letter threatenedGPO's entire contractual10 relationshipwith HurricaneElectric.

One of OPG's users s SanFrancisco ndyMedia, a news collective that is a branch0.12 Indymediahas a collocated omputer hat receivesf a larger, nternational ewscollective.13 Internet connectivity through OPG and that computerhosts he websites and14 .

Just as in the relationship between OPG and Hurricane, OPG has no control over theIndymedia collocated computer other than an ability to unplug it entirely from the Internet. OPG6cannot selectively block internet access or a single link, webpage,piece of information or other

18 information on the collocated ndymediacomputer.19 Attempts o Disrupt OPG's InternetConnectiyitx May Recur20 12. I, along with the rest ofOPG's Board of Directors, remain deeply concerned hat the21 situation we experiencedwith Diebold will recur. Given the depth of interest n the security of

Diebold's evoting technologies,we reasonably nticipate hat additional nfonnation about laws in223 its systemswill becomepublic and hat at leastone ofOPG's userswill be interested n linking to24 the infonnation.25 13. I, along with the rest of the OPG Board of Directors, am also concerned hat others

may attempt o force OPG to censoror restrict its users ree speechby issuing etters such as that627 Diebold's efforts were highlyent by Diebold to our upstream provider, Hurricane Electric.28 publicizedand we reasonably elieve hat onceone personor companydiscovers method o

-3-DECLARATION OF DAVID E. WEEny IN SUPPORT OF


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EXHmIT A


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Diebold Election Systems, nc.1611Wilmeth RoadMcKinnney, TX 75069972 542-6000fax 972 542-6044www.dieboides.comDecember 3, 2003Dear Mr. Doherty:As President of Diebold Election Systems, Inc., I wish to inform you that ourcompany is withdrawing the notification recently issued under the DigitalMillennium Copyright Act of 1998. Diebold has decided not to sue ISPs ortheir subscribers now or in the future for copyright infringement for thenon-commercial use of the materials posted to date, even though the usesmay not qualify as "fair use" under the law.From the outset, I want to emphasize that Diebold's overarching goal is toassist voters in exercising their most fundamental constitutional right: theright to vote. We believe that our touch screen and other electronic votingtechnologies are a major leap forward in helping more Americans vote withincreased accuracy and accessibility. Touch screen technology eliminates"overvoting" and significantly reduces "undervoting." In addition, our touchscreen technology offers multi-lingual ballot capability and enables thevisually impaired to vote without assistance or the first time in their lives.We recognize that how America votes is a matter of intense public interest,as it should be, and we support the electorate's right to participate in anopen and robust debate on that topic. I want to assure you that mycompany's use of the Digital Millennium Copyright Act in response to thetheft of internal information and development materials does not diminishour commitment to the constitutional values of our country.No company-whether an ISP, a software developer, or any type ofcompany-wants its internal conversations openly broadcast, and I am sureyour internal business correspondence ncludes information involving theunique capabilities and insights that you feel are important to the successfuloperation of your company. The correspondencebetween individuals withinour company often contains information concerning unique software,features and capabilities that provide Diebold with a potential advantage ina competitive marketplace. This type of information constitutes Diebold'swork product and important intellectual property.


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With that background, here is what led to the current situation. In Januaryof this year, some software and other material was inadvertently exposedthrough a website of a predecessorcompany. In March, a hacker broke intoone of our servers and stole a considerable quantity of our documentsincluding a significant archive of information which is proprietary to Diebold.As you can imagine, the issue for Diebold, as for any other company in asimilar circumstance, was what to do about the theft of its property in whichit had a copyright interest, especially given the ease and quickness withwhich the stolen material could and did spread around the Internet.In order to protect its intellectual property rights, Diebold chose to notifyISPs, as expressly permitted by the DMCA, hat stolen material, in whichDiebold has a copyright interest, was being hosted on or linked to websitesunder the ISP's control. Although we believe our legal position was andcontinues to be correct, we recognize that our DMCAefforts have becomethe story, and may be influencing the debate on how America's votes canbe recorded and tallied most accurately.To help refocus the public debate on that central issue, and recognizing thata considerable amount of the stolen email archive is now widely available onthe Internet, Diebold has decided not to sue ISPs or their subscribers forcopyright infringement for the non-commercial use of the materials. We arealso withdrawing the DMCAnotifications previously sent to you and otherISPs.In taking this action, we are underscoring Diebold's commitment not only toprovide the best voting systems in America, but to contribute to a robustpublic debate on how to record and tally the vote most accurately andefficiently. We welcome your input and suggestions concerning how we ascitizens can further enhance the election process. Please et me know if youhave any questions or comments concerning our position.Sincerely,Robert J. UrosevichPresident

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00717-Decl of Weekly w Exhs