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DMCA Abuse?

By Louis Trager

After someone electronically lifted embarrassing e-mails from Diebold Inc. and posted them online, the company responded with a tactic that more and more companies are using to put a lid on Internet distribution of sensitive information: Diebold sent cease-and-desist notices to organizations hosting Web sites and forums that had published, or even linked, to the e-mails. The messages portrayed participants in Diebold's electronic voting business confirming their critics' worst nightmares about security vulnerabilities.

Information may want to be free. But specialists ' such as partner Russell Frackman of Los Angeles's Mitchell Silverberg & Knupp, one of Hollywood's leading copyright counsel ' say that sending such notices under the 5-year-old Digital Millennium Copyright Act (DMCA) succeeds, in the vast majority of cases, in promptly curtailing online distribution. The technique is so effective, critics contend, that it is often abused in situations where no copyright protection applies or ' as with the Diebold case ' there would be a strong fair use defense.

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