November 10, 2003
Derek Slater, Harvard and Diebold the Crimson. Derek posted the Diebold memos on his Harvard account website, wrote about it on his blog, and received a C&D on October 31, 2003. Harvard rules say he gets two chances for copyright violation, before he loses his account. Diebold served the C&D under the DMCA rules, maintaining that the memos are copyright protected, and Harvard responded by disabling the documents.

    Derek: "These documents are potentially important to our democracy and the integrity of our voting system," he said. "It's necessary to spur debate."
    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."

A hearing will decide the matter of whether the policy of copyright violations applies to this kind of speech.

UPDATE: Derek has noted in the comments that even though the article said there would be an upcoming hearing, in fact there isn't one scheduled. Also, the article erred in stating that Harvard sent the C&D to him. In fact it was Diebold. And above, in the quote about the four criteria and the DMCA, instead there are four factors (which were used before the DMCA was passed) for determining fair use of copyrighted works.

Posted by Mary Hodder at November 10, 2003 08:21 AM

Just a minor clarification: there is no planned hearing. While I have said on numerous occasions that I will go through with one if necessary, we're not near that stage - currently, I'm still discussing the matter with Harvard officials.

Posted by: Derek Slater on November 10, 2003 01:02 PM

Thanks Derek. The article says otherwise. Glad to see you are on top of it and of course, we wish you the best of luck!

Posted by: mary hodder on November 10, 2003 01:33 PM

Yeah it's funny - it's amazing how little I expect from articles on this topic. I breathed a sigh of relief when the only major legal error was "The DMCA uses four criteria to decide whether copyrighted material can be made freely available, Palfrey said."

Posted by: Derek Slater on November 10, 2003 02:35 PM

Well, yes, that and the "upcoming" hearing remark (which isn't a legal thing but still an error) ....

Posted by: mary hodder on November 10, 2003 02:45 PM

I wish Derek had the support I got here from SIMS and the Berkeley administration... for example, one communication from the administration said:

"[We] of course have a large stake in the substance of the matter, since the issues of balancing free speech against copyright protections is a matter of intense concern right now."

I just wish they'd put their lawyers were their mouths are.

Posted by: joe on November 10, 2003 03:30 PM
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