Slater and Palfrey questioned the invocation of the DMCA to force the removal of the documents, saying Diebold was misusing the law.

“I think it’s both regrettable and inappropriate to use the copyright law to stifle this political speech,” Palfrey said.

He said that the case for copyright infringement is hardly airtight against Slater, an affiliate of the Berkman Center.

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.”

Slater said he has been consulting Law School faculty to consider options for fighting the University’s classification of the documents as copyright violations.He said there has been no date set for a hearing, and that he was not aware of any formal process for making decisions on copyright infringement.

Kevin S. Davis ’98, the coordinator of residential computing for the Harvard Arts and Sciences Computing Services (HASCS), said last night be could not comment on individual students’ violations.