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It is highly worthwhile to compare EVI's actions against EPO and more recently against PRMI with recent case law established when Diebold Inc was forced to pay US$125,000 in damages and fees to various parties for illegally using the DMCA take-down process.

In that case, Diebold's served cease & desist notices under the DMCA provisions on internet service providers including the Online Policy Group (OPG) demanding that OPG take down an email archive originating within Diebold where Diebold claimed full copyright.  In the subsequent summary judgement, Diebold were found to have knowingly materially misrepresented that publication of the email archive constituted copyright infringement. As part of the discussion in the summary judgement against Diebold, the judge made the point that:

The purpose, character, nature of the use, and the effect of the use upon the potential market for or value of the copyrighted work all indicate that at least part of the email archive is not protected by copyright law.

Specifically the judge stated:

Moreover, Diebold has identified no specific commercial purpose or interest affected by publication of the email archive, and there is no evidence that such publication actually had or may have any affect on the putative market value, if any, of Diebold’s allegedly copyrighted material.  Even if it is true that portions of the email archive have commercial value, there is no evidence that Plaintiffs have attempted or intended to sell copies of the email archive for profit. Publishing or hyperlinking to the email archive did not prevent Diebold from making a profit from the content of the archive because there is no evidence that Diebold itself intended to or could profit from such content.

In the case of EVI taking action against EPO during 2003, it is clear that among the materials that EVI cited as being their copyright there is no evidence that EVI were harmed commercially.  Indeed the cited EPO materials were generally historic materials which EVI did not seek to sell or in any way profit from, instead there is overwhelming anecdotal evidence that EVI requested such materials to be destroyed many years previously.  In the case of PRMI, it appears that EVI did not correctly cite what materials they claim copyright on (as they are required to do under the DMCA provisions).  In any event all materials on PRMI are either original content (copyright being vested in the various authors) or, similar to EPO, are historic materials of no commercial value to EVI.

This view that all materials are no longer the copyright of EVI (assuming they had copyright in the first place, which is disputed) is reinforced by the fact that EVI allowed their claim against EPO to lapse.  If EVI really had felt strongly that materials on EPO were their copyright, as they claimed to in their original DMCA notification against EPO, they should have pursued their claim against the EPO webmaster.  Certainly EVI have the financial resources to have pursued such a claim.  They chose not to pursue their claims and one must speculate that they do not themselves believe they have valid copyright claims.  As the judge in the Diebold case stated:

The fact that Diebold never actually brought suit against any alleged infringer suggests strongly that Diebold sought to use the DMCA’s safe harbor provisions—which were designed to protect  ISPs, not copyright holders—as a sword to suppress publication of embarrassing content rather than as a shield to protect its intellectual property.

 The Diebold case also provides further supporting arguments that EVI do not have valid copyright claims against EPO and PRMI (and other online resources) as follows:

  1.  Fair Use: The judge in the Diebold case cited the various 'Fair Use' provisions of the US Copyright Law as being applicable, particularly the purpose of use, the nature of copyright work, the amount of use and the effect of the use upon the potential market.  By any reasonable point of view the use of materials relating to Prem Rawat and his organizations by former followers constitute 'fair use'.

  2. Intent: In the Diebold case the judge observed that at no time was there an intention on the part of the alleged copyright infringers to profit commercially from placing online the relevant materials.  Similarly, EPO and PRMI, have never sought to profit commercially from their online activities.

  3. Public Interest Test: In the Diebold case an important consideration was that publication of the relevant materials was in the 'Public Interest'. This applies equally to materials concerning Prem Rawat and his various organizations. It is self-evidently clear that publication of Prem Rawat's various claims are in the public interest particularly as he continues to be a 'world renowned public speaker' as claimed by EVI and their sister organizations.

  4. Partial Content: The fact Diebold knew that a proportion of the relevant materials was not in copyright made them liable to damages and fees, even if the balance of the relevant materials were under copyright.  In the case of EVI they know, or certainly ought to know, that a significant portion of the disputed EPO and PRMI content is no longer copyright protected if it ever was in the first place.

 Whilst the Diebold case did not involve 'public figures' it is worth noting here that the copyright law applicable for public figures such as Prem Rawat is extremely complicated and very prone to uncertainty. It has to be assumed that EVI do not wish to claim copyright over the likeness of Mr. Prem Rawat as portrayed in numerous photographs taken in many different settings. EVI, or certainly their legal advisors, must know that under the First Amendment, copyright laws can not be used to keep public figures out of the public eye.  This is particularly if photographs of Mr. Rawat are not used for commercial advantage (which is the case for both EPO and PRMI) and if malice can not be shown. 

Furthermore the onus would be on EVI, or anyone claiming copyright over photographs of Prem Rawat, that such photographs have been used in a false as opposed to truthful light.  An additional consideration for copyright on photographs of Prem Rawat is that, generally, the copyright to such photographs is held by the photographer.  In the light of Elan Vital previously allowing anyone to take photographs of Prem Rawat at his public appearances, the burden is on EVI (or anyone claiming copyright) to prove that such photographs were taken by people under the 'work for hire' provisions.  As such EVI must be aware that there is considerable doubt of copyright on pictures of Prem Rawat which they appear to claim is theirs.

It is also interesting to note that EVI appear to have issued DMCA notifications only against websites that contain content that is not favorable to Prem Rawat. There are numerous non-EVI and unofficial websites favorable to Prem Rawat that contain pictures and extracts of speeches of Prem Rawat that go unchallenged.  Examples include Promise of Life and Wordpaint.

The Diebold case was hailed as an important precedent setting case for free speech and will cause organizations pause for serious thought before making unfounded and frivolous copyright claims under the DMCA provisions as otherwise they may be liable for substantial damages and fees.  It is hoped that EVI and their sister organizations will review this legal precedent carefully before embarking on another round of actions against former followers who simply wish to inform and educate the public.

Article created June 21st, 2005


OPG et al vs. Diebold articles

Diebold Summary Judgement

Electronic Frontier Foundation

Stanford Law School Center for Internet and Society

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