In August 2004, a federal judge in California ruled that Diebold Election Systems had knowingly misrepresented that its leaked internal emails, posted online by critics, infringed copyright. Diebold ended up paying roughly $125,000 in damages and fees. The decision, Online Policy Group v. Diebold, 337 F. Supp. 2d 1195 (N.D. Cal. 2004), remains the benchmark case under 17 U.S.C. § 512(f), the provision that makes a bad-faith DMCA takedown notice expensive for the sender.
The DMCA makes removal fast and cheap for copyright owners, and the system tolerates candid mistakes. What it does not tolerate is a sender who asserts infringement without a reasonable basis. Whether you file takedowns for a living or you just received a notice that reads like suppression, this case marks exactly where that line sits.
The Leaked Emails That Started the Fight
Diebold was an Ohio company long known for ATMs and, after acquiring voting-machine maker Global Election Systems in 2002, for electronic voting machines deployed across the United States. In 2003, an archive of Diebold's internal email began circulating online after a leak. The messages were ordinary workplace material, bug reports, project threads, engineering chatter, but they documented security vulnerabilities in voting systems and software deployed in ways that raised certification questions.
With a presidential election approaching, that was news. Student activists at Swarthmore College posted the archive. Independent media sites and voting-integrity advocates mirrored it wherever they could, and Diebold wanted it gone. The material was also, in large part, factual, which is precisely where the copyright theory would break apart.
How Diebold Used DMCA Takedown Notices to Silence Critics
Diebold reached for copyright. It sent a wave of takedown demands to web hosts, universities, and service providers carrying the archive.
The mechanics favored Diebold at first. If you're unclear on what a DMCA takedown notice is, the short version is a formal demand asserting that hosted material infringes copyright, coupled with a threat to the provider's legal protection if it does not act. A provider that shrugs off a facially compliant notice risks its safe harbor, so hosts remove first and investigate later. That is what the statute rewards. Universities leaned on students. Copies of the archive vanished from site after site.
Nothing about who can file a DMCA takedown stopped any of this, copyright owners and their agents may send notices, and on paper Diebold qualified. The company also went beyond the DMCA with cease-and-desist letters warning hosts that leaving the emails up would cost them their legal protection.
One provider refused to fold. Online Policy Group, a small nonprofit ISP whose hosted sites carried the archive, sued Diebold in the Northern District of California in the fall of 2003, represented by the Electronic Frontier Foundation. Two Swarthmore students who had posted copies joined the fight with EFF's help. The plaintiffs asked the court to declare the postings non-infringing and to hold Diebold liable under § 512(f) for knowing misrepresentation. Judge Jeremy Fogel drew the case.
Section 512(f): The Statute That Bites Back
Section 512(f) exists because Congress wrote the takedown system knowing it could be abused. It imposes liability on anyone who knowingly materially misrepresents either that material is infringing or, the mirror-image situation, that material was removed by mistake or misidentification. An injured party, the alleged infringer, another copyright owner, or the service provider itself, can recover damages plus costs and attorney's fees, and the statute also provides for injunctive relief for a person harmed by a misrepresentation.
Two features matter to anyone weighing fighting back under section 512(f). First, Judge Fogel read "knowingly" to cover assertions no reasonable copyright holder could have believed, an objective reasonableness standard. Second, there are no statutory damages. Recovery tracks actual losses and litigation costs, which is why genuine 512(f) suits stay rare: they make sense mainly against solvent defendants with indefensible notices.
Diebold was solvent. Its notices were indefensible. The case never needed a trial.
The August 2004 Ruling on Knowing Misrepresentation
Judge Fogel granted summary judgment for the plaintiffs on the misrepresentation claim, no trial, because the written record left no genuine dispute. He held that Diebold knowingly and materially misrepresented that infringement had occurred. The reasoning broke into strands, each a lesson in itself.
- Ownership was doubtful. Parts of the archive predated Diebold's 2002 acquisition of Global Election Systems, so authorship, and with it, ownership, was murkier than the notices claimed.
- Much of the content was not protectable. The emails traded in facts: how the machines performed, what had gone wrong, what employees knew and when. Section 102(b) of the Copyright Act keeps facts, ideas, procedures, and discoveries outside copyright, no matter how much effort went into gathering them. Even a compilation theory protects only Diebold's particular selection and arrangement, never the underlying facts.
- Implied licenses covered much of it. Employees, election officials, and other recipients had implied licenses to use the emails for their business purpose. A posting consistent with that kind of license is not infringement, and Diebold had no reasonable basis to think otherwise.
- The motive was suppression. The court saw a company using copyright claims to keep embarrassing information offline in an election season, not to protect creative expression.
A fair use lens made the claim no stronger. Newsworthy, largely factual material republished to inform public debate about voting systems sits close to the core of what fair use exists to cover. The through-line of the ruling was the standard: no reasonable copyright holder in Diebold's position could have believed the postings infringed. A sincere belief was not enough; the claim had to be objectively defensible. That framing is the decision's lasting contribution to copyright law.
On remedies, the court awarded fees and costs, and press reports put Diebold's total payout at roughly $125,000 in damages and fees. Section 512(f) offers no statutory damages, so the figure reflects actual losses and litigation expense. The money was never the real cost. A federal court had formally found that a major voting-machine vendor used the DMCA to try to bury its own documents in an election year. The archive stayed online, and the ruling itself became the story. Diebold later exited the elections business entirely.
How Online Policy Group v. Diebold Shaped Later DMCA Cases
The Ninth Circuit then pulled the standard in a more sender-protective direction in Rossi v. MPAA (9th Cir. 2004), reading "knowingly" to require actual knowledge of falsity and shielding honest-but-wrong senders. Lenz v. Universal later synthesized the two lines: the belief a sender must hold is subjective good faith, but an objectively unreasonable belief can be evidence the belief was never genuinely held. For senders, the working standard after Diebold, Rossi, and Lenz is simple: hold a plain belief, and make sure a reasonable copyright owner could hold it too.
The next building block came from Lenz v. Universal, the dancing baby dispute that ran from 2007 to a 2016 Ninth Circuit decision. Universal's takedown of a 29-second home video with Prince playing in the background kept a § 512(f) claim alive, because the court held that a copyright owner must consider fair use before sending a notice. A belief about infringement that ignores fair use is not a good faith belief. Diebold supplied the framework; Lenz filled in the duty.
Enforcement has stayed scarce. In Automattic v. Steiner, one of the few later § 512(f) wins, the final award came to about $9,000, real money to an individual, small against the cost of litigating. Section 512(f) is also a US remedy with no equivalent in many other systems; Canada's notice-and-notice regime does not require takedowns at all. In practice the provision works as deterrence and negotiating leverage, which is why a documented, objectively unreasonable notice is worth more than a lawsuit.
Before You File a DMCA Notice: The Checklist Diebold Skipped
The ruling maps onto a short checklist worth running before any notice goes out, especially over internal documents, leaks, or material that criticizes you.
- Confirm ownership. If authorship is spread across employees, contractors, or predecessor companies, pin the chain of title down before asserting copyright. Proving content ownership is the foundation of every defensible notice, and it is where Diebold stumbled first.
- Separate expression from fact. You can own the specific wording of a document and have no claim over the facts it reveals. A notice aimed at criticism that quotes your material fails the same way Diebold's did.
- Run a fair use analysis on paper. Newsworthiness, criticism, and factual content all weigh in the user's favor. Know when fair use means you should not file a DMCA takedown at all, the Ninth Circuit has required this consideration since Lenz.
- Stand behind the statutory statements. A compliant notice asserts a good faith belief in infringement and the accuracy of the information in it. Those statements are where § 512(f) liability attaches when the belief behind them was objectively unreasonable.
Keep notes of what you checked and why. Contemporaneous analysis protects you if a dispute erupts later. Analysis written after a lawsuit is filed protects no one.
If You Received a Bad-Faith DMCA Takedown Notice
Recipients have real options, but the sequence matters.
Read the notice before reacting. A valid § 512 notice must identify the copyrighted work and the allegedly infringing material, include contact information, carry statements of good faith belief and accuracy, and be signed. If those elements are missing, the notice may not trigger your host's legal obligations at all, although platform policies can still remove material on their own terms. Our guide to what to do when you receive a DMCA notice covers that first read.
Preserve everything. The notice, the date it arrived, the URL, your host's removal messages, all correspondence. Misrepresentation claims live and die on documentation, and a notice that reads like suppression today becomes your best exhibit next month.
If the material was not infringing or was fair use, the counter-notice is the statutory path back online. Understand what happens after you send a counter-notice first: it includes your consent to be sued in federal court, and the host generally restores the material within ten to fourteen business days unless the sender files an actual court action.
If the notice claims ownership of bare facts, ignores obvious fair use, or targets criticism of the sender, say so in writing. Cite § 512(f). Name this case. Request withdrawal. Senders with indefensible notices tend to retreat once retreat is cheaper than a ruling.
Calibrate expectations. Filed § 512(f) suits are rare, litigation is slow, and awards are modest, as the later case law shows. The credible threat usually outperforms the lawsuit. When real revenue or reputation is on the line, that is when to hire a copyright lawyer or a professional service instead of going alone.
Frequently Asked Questions About Online Policy Group v. Diebold
Can you go to jail for sending a false DMCA takedown notice?
No. Section 512(f) is a civil remedy, the injured party recovers damages, costs, and attorney's fees, but no one is criminally prosecuted under it. The perjury clause in a DMCA notice covers only the signer's authority to act for the copyright owner, not the claim that the material infringes. There is no general federal crime for knowingly false takedown claims.
What does "knowingly" mean under section 512(f)?
It depends on the court. Judge Fogel in Diebold applied an objective standard, no reasonable copyright holder could have believed the emails infringed. The Ninth Circuit in Rossi v. MPAA (2004) later read "knowingly" to require actual knowledge of falsity, protecting honest-but-wrong senders, and Lenz held that objective unreasonableness can serve as evidence that a claimed good-faith belief was not real. Diebold itself lost at summary judgment because its claims failed even the more forgiving reading.
Are leaked internal emails protected by copyright at all?
Partly. Copyright can protect the original expression in an email, its particular wording and structure, even if the document was never meant for the public. But section 102(b) keeps facts, ideas, procedures, and discoveries outside copyright, no matter how sensitive. Diebold's archive mixed both, and the material critics wanted most was the unprotected part.
How much can someone recover for a bad-faith DMCA notice?
Damages, costs, and attorney's fees under section 512(f). There are no statutory damages, so recovery tracks actual losses and litigation expenses. Diebold's resolution was widely reported at roughly $125,000, one of the larger figures on record. Most awards run far smaller, the final award in Automattic v. Steiner was about $9,000.
How is Online Policy Group v. Diebold different from the dancing baby case?
Both are section 512(f) decisions aimed at different failures. Online Policy Group v. Diebold found Diebold's core claims, ownership, protectability, and implied license, objectively unreasonable under ordinary copyright law. Lenz v. Universal, the dancing baby case, added that a sender must consider fair use before filing a notice. Together they define bad-faith takedown liability.
What to Do Next
Either side of a DMCA dispute benefits from the discipline Diebold skipped. Work the steps in order:
- Read any notice, or draft one, against the § 512 elements: the work identified, the material identified, contact details, the good faith and accuracy statements, a signature.
- Sort protected expression from unprotected fact before you claim infringement or concede it.
- Put your fair use analysis on paper before you act, not after.
- Preserve every notice, date, URL, and platform message from day one.
- If a claim is objectively unreasonable, say so in writing, cite § 512(f), name this case, and request withdrawal.
- Bring in professional help when the stakes outgrow a template. Our professional takedown service drafts notices built to survive this exact scrutiny and defends recipients facing the Diebold-style demand, so you never become the next benchmark case.