Online Policy Group v. Diebold Complaint
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Cindy A. Cohn, Esq. (SBN 145997)
Wendy Seltzer, Esq.
ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street
San Francisco, CA 94110
Telephone: (415) 436-9333 x108
Facsimile: (415) 436-9993
Attorneys for Plaintiff
ONLINE POLICY GROUP
Jennifer Stisa Granick, Esq. (SBN 168423)
STANFORD LAW SCHOOL
CENTER FOR INTERNET & SOCIETY
559 Nathan Abbott Way
Stanford, CA 94305-8610
Telephone: (650) 724-0014
Facsimile: (650) 723-4426
Attorneys for Plaintiffs
NELSON CHU PAVLOSKY and LUKE THOMAS SMITH
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
ONLINE POLICY GROUP, NELSON CHU PAVLOSKY, and LUKE THOMAS SMITH,
Plaintiffs,
v.
DIEBOLD, INCORPORATED, and DIEBOLD ELECTION SYSTEMS, INCORPORATED,
Defendants.
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No. __________
complaint for injunctive relief for intentional interference with contract; for copyright misuse; for
damages for misrepresentation of copyright claims under the Digital Millennium Copyright Act; and
for declaratory relief
(Jury Trial Demanded)
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1. This is a civil action seeking injunctive relief for intentional interference
with contract; for copyright misuse; for damages for misrepresentation of copyright claims under
the Digital Millennium Copyright Act; and for declaratory relief.
2. This case arises out of legal threats issued by the Defendants, namely threats
of copyright litigation made in an attempt to stifle public discussion and criticism
of the Defendant companies products, electronic voting machines. The threats have successfully induced
the removal of the information from the websites run by Plaintiffs Pavlosky and
Smith, due to actions taken by their ISP, Swarthmore College. The threats have
also interfered with the contractual relationship between Plaintiff Online Policy Group and its
upstream Internet service provider, Hurricane Electric and that between Plaintiffs Pavlosky and Smith
and Swarthmore College.
PARTIES
3. Plaintiff Online Policy Group (OPG) is a California public benefit corporation with its
principal place of business in the State of California, county of San Francisco.
4. Nelson Chu Pavlosky (Pavlosky) is an individual residing at 500 College Avenue at
Swarthmore College, Swarthmore, Pennsylvania. Pavlosky is a sophomore at Swarthmore College and one
of the co-founders of the Swarthmore Coalition for the Digital Commons (SCDC).
5. Luke Thomas Smith (Smith) is an individual residing at 500 College Avenue at
Swarthmore College, Swarthmore, Pennsylvania. Smith is a sophomore at Swarthmore College and the
other co-founder of the SCDC.
6. On information and belief, Diebold, Inc. is an Ohio corporation with its principal
place of business in the State of Ohio. On information and belief, Defendant
Diebold Election Systems, Inc. is a wholly owned subsidiary of Diebold, Inc. Both
Defendants will be collectively referred to as Diebold.
7. On information and belief, Diebold manufactures and sells electronic voting systems and software,
including voting systems used in Alameda, Fresno, Humboldt, Lassen, Marin, Modoc, Placer, San
Luis Obispo, Santa Barbara, Siskiyou, Trinity, and Tulare counties in California. Diebold systems
have also been sold for use in Georgia, Maryland, Massachusetts, Ohio, and Texas.
JURISDICTION AND VENUE
8. This court has subject matter jurisdiction over the federal claims pursuant to the
Copyright Act (17 U.S.C. §§ 101 et seq.), 28 U.S.C. §§ 1331 and 1338 and
the Declaratory Judgment Act (28 U.S.C. § 2201). This court has supplemental subject matter
jurisdiction over state law claims pursuant to 28 U.S.C. § 1367(a) in that the
state law claims form part of the same case or controversy as the
federal claims.
9. Plaintiffs are informed, believe and thereon allege that Defendants, and each of
them, have sufficient contacts with this district generally and, in particular, with the
events herein alleged, that each such Defendant is subject to the exercise of
jurisdiction of this court over the person of such defendant and that venue
is proper in this judicial district pursuant to 28 U.S.C. § 1391.
10. Plaintiffs are informed, believe and thereon allege that, based on the places of
businesses of the Defendants identified above and/or on the national reach of Defendants,
and each of them, a substantial part of the events giving rise to
the claims herein alleged occurred in this district and that Defendants, and each
of them, and/or an agent of each such Defendant, may be found in
this district.
FACTUAL ALLEGATIONS RELATED TO ALL COUNTS
ONLINE POLICY GROUP
11. OPG is a San Francisco-based volunteer organization providing pro bono Internet hosting services
and colocation services to nonprofit organizations and individuals who are under-represented, underserved, or
facing unfair bias, discrimination, or defamation. Founded in July 2000, OPG now serves
approximately 1000 websites; it provides collocation facilities to more than 100 users who
themselves host more than 110 websites. Overall, OPG serves more than 77,700 individuals.
12. OPGs users include San Francisco IndyMedia, a branch of the international Independent Media
Center news media collective. San Francisco IndyMedia hosts a website available at both
http://www.indybay.org and http://www.sf.indymedia.org. The San Francisco IndyMedia website resides on a webserver co-located
with OPG. Colocation means that the San Francisco IndyMedia server is not owned
or controlled by OPG; it simply resides in physical premises leased from OPG
alongside OPGs own servers and utilizes OPGs Internet connection.
13. OPG receives its upstream Internet connection from Hurricane Electric, an upstream ISP (also
known as a Business Technical Service Provider) based in Fremont, California. Attached hereto
as Exhibit A is a true and correct copy of the written contract
between OPG and Hurricane Electric.
14. On October 10, 2003, Diebold sent OPG a cease-and-desist letter under 17 U.S.C.
§ 512 through its attorney, Ralph E. Jocke, threatening copyright infringement litigation if OPG
failed to remove links and other information from the IndyMedia website. A true
and correct copy of the cease-and-desist letter is attached as Exhibit B hereto
and incorporated herein by reference.
15. The October 10, 2003 letter asserts that an IndyMedia web page hosted by
OPG links to online locations at which Diebold correspondence was posted, specifically an
e-mail archive of communications among Diebold employees about the companys electronic voting machine
product (e-mail archive). The letter asserts that Diebold holds copyright to the correspondence,
and further asserts that the IndyMedia webpages that link to the locations where
the e-mail archive is infringe[s] Diebolds copyrights.
16. Further, the October 10, 2003, letter purports to advise [OPG] of our clients
rights and to seek [OPGs] agreement to the following: To disable or remove
the information location tool(s) identified in the attached chart. In addition to disabling
or removing any hyperlink, the disabling or removal should include destroying the usefulness
as an information location tool of any textual directory or pointer information contained
therein.
17. The October 10, 2003 letter expressly asserts that Diebold reserve[s] their position insofar
as costs and damages caused by OPGs hosting of the IndyMedia website with
links to the e-mail archive and further asserts that it reserve[s] their right
to seek injunctive relief to prevent further hosting of the IndyMedia website with
links to the e-mail archive by OPG. In other words, the letter included
a threat of litigation against OPG if it did not comply with the
demands in the letter.
18. The October 10, 2003 letter states that Diebold looks forward to a response
within 24 hours.
19. The October 10, 2003 letter to OPG caused great apprehension, concern and disruption
to OPG. OPG sent a brief response indicating that it was consulting with
counsel.
20. Because OPG does not control the San Francisco IndyMedia computer hosting the website,
instead only providing Internet connectivity to that computer through colocation, OPG could not
comply by merely disabling or removing the hyperlink and related information demanded by
Diebold. OPGs only option to comply with the demand was to cut off
IndyMedias Internet connectivity entirely. This would disable the entire website and any other
information stored on that computer from connection to the Internet.
21. While fearful of the potential of ruinous litigation, OPG board decided not to
comply, because the demand would require OPG to restrict speech by its users
that OPG believed was lawful, in ways antithetical to the OPG mission of
promoting free speech.
22. On October 22, 2003, OPGs counsel wrote a response to Diebolds counsel stating
that OPG would not comply with the demand and explaining why it had
come to that decision. Attached hereto as Exhibit C is a true and
correct copy of the letter sent by OPG counsel to Diebold counsel.
23. At about the same time, another user of OPGs web hosting services indicated
that it wished to publish the e-mail archive.
24. Also on October 22, 2003, OPG received notice that its upstream Internet provider,
Hurricane Electric, had received a cease-and-desist letter from Diebold. Attached hereto as Exhibit
D is a true and correct copy of the letter sent by Diebold
Counsel to Hurricane Electric.
25. Diebolds October 21, 2003, cease-and-desist letter to Hurricane Electric, which Hurricane forwarded to
OPG, demanded that Hurricane Electric assist in removing the identified infringing material or
act in accordance with your 17 U.S.C. 512(i)(1)(A) policy that provides for the
termination in appropriate circumstances of subscribers and account holders of the service providers
network who are repeat infringers.
26. Again, Diebolds actions caused tremendous apprehension, concern and disruption to OPG. This time,
however, the threat carried much more severe consequences. As with the technical structure
between OPG and IndyMedia, the technical structure between Hurricane and OPG meant that
Hurricane Electric could not simply remove the link from the IndyMedia website hosted
by OPG. Instead, Diebolds demands, if complied with by Hurricane Electric, would result
in the disconnection of all of OPGs users from the Internet and the
disabling of all of the approximately 1000 websites and other Internet services provided
by OPG to the more than 77,700 individuals served by OPG. Such disconnection
by Hurricane Electric in response to Diebolds demand would threaten the continued existence
of OPG. The volunteer board held an emergency board meeting to discuss the
Diebold letter to Hurricane Electric.
27. In a discussion with OPG on October 22, Hurricane Electric informed OPG that
it took Diebolds copyright demands seriously.
28. After OPG indicated that it intended to seek relief from this Court against
further threats from Diebold, Hurricane Electric informed OPG that it would not take
action to terminate OPGs contract based on this single complaint regarding IndyMedias links.
29. However, Hurricane Electric has stated that it might be forced to terminate OPGs
contract in the future, if it received further demands from Diebold.
30. In particular, Hurricane Electric has stated that it might be forced to terminate
OPG if it received complaints alleging that OPGs clients were hosting Diebold material
directly, rather than just linking to it.
31. Based upon the conversation with Hurricane Electric, OPG told other users that they
may not host the e-mail archive pending clarification from this Court.
MR. PAVLOSKY AND MR. SMITH
32. Plaintiffs Pavlosky and Smith co-founded SCDC, an unincorporated student association, in September of
2003 to advocate a bottom-up participatory structure for society and culture, characterized by
the free and open exchange of information. The group is dedicated to the
promotion of free and open-source technological standards to enable such participation.
33. SCDC operates an Internet website on the Swarthmore College network at <http://scdc.sccs.swarthmore.edu>. Internet
connectivity and the right to set up websites for student organization use are
among the services provided as part of Swarthmore College tuition.
34. The SCDC website describes the organizations goals and mission, alerts members and interested
students of meetings, and provides updates on organizational activities and projects. The website
also provides links to resources, including newspaper articles and other websites, relevant to
SCDCs goals and mission.
35. SCDC members discussed the effect of technology on government, and particularly the issue
of voting transparency, as early as their first meeting in September 2003. Plaintiff
Pavlosky considered studying non-proprietary, open-source alternatives to voting technologies developed by private companies
with proprietary interests.
36. Plaintiffs Pavlosky and Smith first heard about the Diebold email archive from friends
active in another Swarthmore student group, Why-War? The www.Why-War.com website hosted the e-mail
archive between October 8 and 10, 2003. After hearing that the e-mail archive
contained information on, among other topics, the (lack of) accuracy, security and accountability
of Diebolds electronic voting machines widely used in the United States, Plaintiffs Pavlosky
and Smith viewed and downloaded the archive.
37. Plaintiffs Pavlosky and Smith determined that the e-mail archive was directly relevant to
the SCDCs study project.
38. Plaintiffs Pavlosky and Smith learned at some time in early October that Diebold
had asked Why-War?s off-campus Internet service provider to disable access to the e-mail
archive, at which point student members of Why-War? and other Swarthmore students began
to host the archive on personal websites. This arrangement was impracticable due to
the size of the archive and bandwidth issues.
39. Thereafter, Plaintiffs Pavlosky and Smith decided to post the e-mail archive on the
SCDC website to preserve public access to the documents. On October 21, 2003,
SCDC posted the e-mail archive on its website to show the public the
serious and deep-seated problems with the Diebold machines, and to educate the public
about the need for a transparent voting system. A true and correct copy
of the e-mail archive is attached hereto as Exhibit E.
40. On October 22, 2003, Swarthmore College administration told SCDC that the school had
received a letter from Diebold claiming that SCDC was infringing Diebolds copyright by
posting the e-mail archive. A true and correct copy of the cease-and-desist letter,
which Plaintiff Pavlosky later obtained, is attached hereto as Exhibit F.
41. On October 23, 2003, Swarthmore disabled Internet access to the e-mail archive on
the SCDC website.
42. Plaintiff Smith subsequently added a link from the SCDC website to the e-mail
archive posted on a remote site. Plaintiff Pavlosky removed this link after being
informed that even linking from a Swarthmore website to an outside website hosting
the e-mail archive contravened Swarthmore policy.
43. Neither Plaintiff Pavlosky nor Plaintiff Smith is currently hosting or linking to the
e-mail archives on the SCDC website or any other site.
44. Plaintiffs Pavlosky and Smith are concerned for their ability to learn more about
the e-voting debate, including their ability to plan a symposium, Choosing Clarity: Symposium
on Voting Transparency, that SCDC had set for the week of December 1,
2003.
THE PUBLIC DEBATE ABOUT THE SECURITY OF ELECTRONIC VOTING MACHINES
45. The security and independent verifiability of the accuracy of electronic voting systems, including
those manufactured by Diebold, are subjects of intense national debate. Diebold electronic voting
machines have been criticized for overall lax security, both in the machines themselves
and in the processes used by Diebold to test, update and develop the
product. Plaintiffs are informed and believe, and based upon such information and belief
allege that as a result of independent research done on certain Diebold computer
code that revealed serious security problems, the State of Maryland commissioned a study
of the Diebold code that confirmed high-risk vulnerabilities in the implementation of the
managerial, operational and technical controls for Diebolds electronic voting system.
46. Moreover, some members of the public have raised concerns because the Diebold e-voting
machines, like many others, produce no paper records of votes cast that can
be reviewed and verified by individual voters for accuracy and then used as
a separate audit trail in the case of a question about the accuracy
of the machines or other circumstances. Members of the public and some election
officials have raised concern that such systems, including Diebolds system, by relying entirely
on the security of the voting systems themselves for verification of election results,
create a tremendous risk of erroneous or fraudulent election results.
47. These concerns, among others, have resulted in significant public debate and media coverage
about the security of Diebolds voting machines.
48. Numerous Internet websites have posted news, reports, and internal Diebold documents assessing the
security of Diebold electronic voting systems, including the e-mail archive.
49. Numerous traditional print, radio and television media have reported on the controversy surrounding
electronic voting machine security, including the security of Diebolds electronic voting machines.
50. Numerous websites have linked to the Diebold e-mail archive as source material for
their commentary and criticism.
51. A Diebold spokesperson says the company has been issuing cease-and-desist demands to everyone
who has posted Diebold documents, asserting copyright in the documents. Attached hereto as
Exhibit E is a true and correct copy of a Delaware County Times
article, dated Friday Oct. 24, 2003, quoting Mike Jacobsen.
52. Many ISPs have taken down websites in response to Diebolds litigation threats.
53. Plaintiffs are informed and believe and based upon such information and belief allege
that Diebold will continue to send out these cease-and-desist letters unless restrained by
this court.
COUNT I: Tortious Interference with Contract
(All Parties)
54. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs
of this complaint.
Online Policy Group
55. OPG contracts with Hurricane Electric for Internet connectivity. Exhibit A.
56. Defendants cease-and-desist letter of October 21, 2003, admits knowledge of the contractual relationship
between OPG and Hurricane Electric, specifically referring to OPG as one of Hurricane
Electrics subscribers and account holders. Exhibit D.
57. Defendants October 21, 2003, cease-and-desist letter to Hurricane Electric was designed to cause
Hurricane Electric to terminate, interrupt, or otherwise limit OPGs Internet service by misrepresenting
that the actions of OPG in hosting IndyMedias website with links to the
e-mail archive violated Diebolds copyrights.
58. Diebolds threat did disrupt OPGs relations with Hurricane Electric, causing Hurricane to make
immediate demands to OPG, and to threaten interruption of OPGs Internet service in
the future if Diebold documents or links are hosted on machines OPG co-locates
with Hurricane. Because of the threats from Diebold, OPG has been made to
fear for the continuity of its Internet service from Hurricane.
59. As a result of these disruptions, and in order to assure that it
is not disconnected from the Internet, OPG may be forced to take down
the links to the e-mail archive, and with them IndyMedias entire website, if
it receives a further threat from Diebold.
60. As a result of these disruptions, and in order to assure that it
is not disconnected from the Internet, OPG has been forced to limit its
clients activities in ways that are contrary to the OPG mission to support
free speech, specifically by refusing to allow its users to host the e-mail
archive.
Pavlosky and Smith
61. Pavlosky and Smith obtain Internet connectivity and the ability to operate the SCDC
website on the Swarthmore network through Swarthmore College. They pay for that connectivity
as part of their student fees.
62. Defendants letter of October 9, 2003, to Swarthmore College admits knowledge of the
contractual relationship between Pavlosky and Smith and Swarthmore. Exhibit F.
63. Defendants cease-and-desist letter to Swarthmore was designed to cause Swarthmore to terminate, interrupt,
or otherwise limit the Internet service provided by Swarthmore to Pavlosky and Smith
service to which they were contractually entitled by misrepresenting that the actions of
students in publishing the e-mail archive violated Diebolds copyrights.
64. Diebolds threat did disrupt Pavlosky and Smiths relations with Swarthmore, causing Swarthmore to
make immediate demands to Pavlosky and Smith that they cease posting and linking
to the e-mail archive and to threaten interruption of Pavlosky and Smiths Internet
service in the future, if Diebold documents or links to such documents are
hosted on machines that SCDC or Pavlosky or Smith individually connects to the
Swarthmore College network. Because of the threats from Diebold, Pavlosky and Smith have
been made to fear for the continuity of their Internet service from Swarthmore.
65. As a result of these disruptions, and in order to assure that their
Internet services are not disconnected in which case SCDC members would lose a
critical avenue of expression Pavlosky and Smith have been forced to limit their
and other SCDC members expression, in ways that are contrary to the SCDC
mission to support free and open exchange of information.
COUNT II: Misuse of Copyright
(All Parties)
66. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs
of this complaint.
67. The publication of the e-mail archive is fair use, not infringement. Plaintiffs are
informed and believe and based upon information and belief allege that the facts
that underlie this conclusion include, but are not limited to:
a. The purpose and character of the use is to inform public discussion and
political debate on a matter core to American democracy, the functioning of our
electoral system;
b. The nature of the work is factual;
c. The archive does not embody any substantial expressive work and is necessary in
the aggregate for purposes of commentary and criticism;
d. The publication of the e-mail archive does not compete with Diebold in any
current or potential market. If the publication cuts into sales of Diebolds e-voting
equipment it does so only because Diebolds own statements have raised concerns about
the security of their electronic voting machines.
68. Plaintiffs are informed and believe and based upon such information and belief allege
that Diebolds motivation in demanding the documents removal was not to protect any
market for distribution of its e-mail archive or other interest protected by copyright
law, but instead to stifle free speech in the form of criticisms of
its electronic voting systems.
69. Plaintiffs are informed and believe and based upon such information and belief allege
that Diebold used copyright claims in its cease-and-desist demands because the safe harbor
provisions of the Digital Millennium Copyright Act, 17 U.S.C. § 512, provided a mechanism
by which it could demand expeditious takedown of materials alleged to infringe copyright.
70. Plaintiffs are informed and believe and based upon such information and belief allege
that Diebold did not intend in good faith to follow up on its
threats of litigation, because it knew or should have know that linking to
or publication of the documents constitutes a fair use of copyrighted material protected
under 17 U.S.C. § 107, et seq.
71. Defendants engaged in the misuse of their copyrights, including in the letters of
October 9, 10, and 21, 2003, by claiming that the publication of the
e-mail archive by Swarthmore College students constituted copyright infringement when they knew that
it did not.
72. Defendants engaged in the misuse of their copyrights, including in the letters of
October 10 and 21, 2003, by claiming that OPG could be liable for
copyright infringement for hosting a website that merely linked to the e-mail archive.
73. Defendants engaged in the misuse of their copyrights, including in the letter of
October 21, 2003, by claiming that Hurricane Electric could be liable for copyright
infringement for providing upstream hosting services to an ISP that itself hosted a
website that merely linked to the e-mail archive.
COUNT III: 17 U.S.C. 512( f ) MISREPRESENTATION
(All Parties)
74. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs
of this complaint.
75. Plaintiffs are informed and believe and based upon such information and belief allege
that Diebold knew that the publication of the e-mail archive and of links
to the e-mail archive were not an infringement of copyright.
Online Policy Group
76. In its cease-and-desist letters of October 10 and 21, 2003, purportedly issued under
the authority of 17 U.S.C. § 512, Diebold knowingly materially misrepresented that publication of
and links to the e-mail archive to be infringing.
77. In its cease-and-desist letters of October 10 and 21, 2003, purportedly issued under
the authority of 17 U.S.C. § 512, Diebold knowingly materially misrepresented that OPG could
be liable under copyright law for hosting a website that merely contained a
link to the e-mail archive that it claimed was infringing.
78. In its letter of October 21, 2003, purportedly issued under the authority of
17 U.S.C. § 512, Diebold knowingly materially misrepresented that Hurricane Electric could be liable
under copyright law for providing upstream services to an ISP whose users had
a website that merely contained a link to the e-mail archive that Diebold
claimed was infringing.
79. OPG has been injured by the misrepresentation in that Hurricane Electric, its service
provider, relied upon the misrepresentation to forbid OPG from allowing its clients to
post copies of the e-mail archive.
Pavlosky and Smith
80. In its letter of October 9, 2003, issued under the authority of 17
U.S.C. § 512, Diebold knowingly materially misrepresented that publication of the e-mail archive was
infringing.
81. Plaintiffs Pavlosky and Smith have been injured by the misrepresentation in that Swarthmore
College, their service provider, relied upon the misrepresentation to terminate their hosting of
the e-mail archive and to forbid them from linking to the e-mail archive.
COUNT IV: DECLARATORY RELIEF
(All Parties)
82. Plaintiffs repeat and incorporate herein by reference the allegations in the preceding paragraphs
of this complaint.
83. There is a real and actual controversy between Plaintiffs and Defendants regarding whether
the publication of or linking to the e-mail archive constitutes copyright infringement.
84. There is a real and actual controversy between Plaintiffs and Defendants regarding whether
an Internet Service Provider can be held liable for hosting a website that
links to allegedly infringing material.
85. There is a real and actual controversy between Plaintiffs and Defendants regarding whether
an upstream Internet Service Provider can be held liable for providing services to
another Internet Service Provider who hosts a website that links to allegedly infringing
material.
86. Plaintiffs seek a declaratory judgment pursuant to 28 U.S.C. § 2201 and Federal Rule
of Civil Procedure 57 for the purpose of determining and adjudicating questions of
actual controversy between the parties.
87. Plaintiffs contend as it relates to the Defendants and the e-mail archive that,
consistent with the Copyright Act of the United States of America, including those
laws prohibiting direct, contributory or vicarious infringement, laws protecting fair use and the
First Amendment to the United States Constitution, and judicial decisions construing such laws,
doctrines, and provisions:
a) Publication of the e-mail archive is lawful;
b) Hosting or providing colocation services to websites that link to allegedly infringing material
is lawful;
c) Providing Internet services to others who host websites that link to allegedly infringing
material is lawful.
88. Plaintiffs are informed, believe and thereon allege that the Defendants contend the contrary
of each of above-stated propositions (a) through (c).
89. Wherefore, Plaintiffs request that the court determine and adjudge that each and every
of the above-stated propositions states the law applicable to the facts involved in
this action.
PRAYER FOR RELIEF
WHEREFORE, the Plaintiffs pray for judgment for themselves and all others similarly situated
as follows:
1. A declaratory judgment that that as it relates to the Defendants and the
e-mail archive that:
a) Publication of the e-mail archive is lawful;
b) Hosting or providing colocation services to websites that link to allegedly infringing material
is lawful;
c) Providing Internet services to others who host websites that link to allegedly infringing
material is lawful.
2. Injunctive relief restraining the Defendants, their agents, servants, employees, successors and assigns, and
all others in concert and privity with them, from bringing any lawsuit or
threat against Plaintiffs or any other person or entity for copyright infringement of
the e-mail archive in connection with the publication, linking to or hosting services
described above.
3. Damages for copyright misuse and intentional interference with contractual relations according to proof;
4. Judgment barring Defendants from enforcing any copyright in the e-mail archive unless and
until their misuse has ceased;
5. Attorneys fees pursuant to 17 U.S.C. § 512(f), other portions of the Copyright Act,
on a Private Attorney General basis, or otherwise as allowed by law;
6. Plaintiffs costs and disbursements within; and
7. Such other and further relief as the Court shall find just and proper.
Plaintiffs hereby request a jury trial for all issues triable by jury including,
but not limited to, those issues and claims set forth in any amended
complaint or consolidated action.
DATED: November 2, 2003
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By
Cindy A. Cohn, Esq. (SBN.145997)
Wendy Seltzer, Esq.
ELECTRONIC FRONTIER FOUNDATION
454 Shotwell Street
San
Francisco, CA 94110
Telephone: (415) 436-9333 x108
Facsimile: (415) 436-9993
Attorneys for Plaintiffs
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