2020 elections: when copyright and voting systems conflict


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525 points

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As if 2020 could not be more than a ‘hit’ with COVID-19, who would have thought this election season would be? still Happen or occur. Regardless of which side of the political spectrum you might rest, it’s undeniable that this year’s presidential election was not at all normal. One of the most disturbing assertions appears to be related to the voting machines and software used in a number of states, including in a number of states currently contested by President Donald Trump and his legal team. This has led to some reports in the media about so-called “intellectual property” barriers involving election systems and other narratives that tend to confuse rather than clarify the situation. You likely have your own thoughts regarding so-called barriers to fair voting rates that include certain voting systems used during the 2020 presidential elections, but intellectual property should not be one of them.

For the sake of full disclosure, I do not have any internal knowledge about the architecture of many of these voting systems (including, but not limited to, the Dominion Voting Systems Election Management System which is the center of a great deal of interest), but I Act I have a lot of experience developing and distributing software with over 25 years of legal practice. This experience includes protecting software copyrights, navigating confidential information, protecting trade secrets, and Your The license. Although there are many different ways to structure software and platform licenses, some elements are commonplace All Such agreements can be used to support the legitimacy of these systems and their programs.

First and foremost, software can be protected in many different ways but it is always subject to copyright protection at least. Under 17 USC 102, All “original works of authorship installed in any tangible medium of expression, now known or later developed, and by which they can be perceived, reproduced or otherwise transmitted, either directly or with the aid of a machine or device” qualify as a copyrighted subject matter. Computer programs are commonly seen as Literary work (as defined in 17 USC Section 101) Thus, it is protected by copyright once it is “saved” to disk (or other storage medium). Thus the copyright owner has some exclusive rights in and to the program under the copyright law, and can choose how and to what extent his rights are licensed to his clients. Program registration provides additional protection for the copyright owner, such as providing the ability to file a claim against infringement (Under the fourth drug case from Scotus), And obtain legal compensation for the violation and even attorneys’ fees. When combined with hardware platforms (which may be protected by patents, trade secrets as well as copyrights), it is not difficult to admit that the accompanying IP licensing can get complicated.

The point here is that the copyright owner has the right to control the copyright and other intellectual property that covers the software and the accompanying hardware platform, but these rights must be balanced with the needs of the marketplace if the owner wants to market the product. Products may contain software included as part of the system; Others use software-as-a-service models to reach clients over the Internet. For voting systems, method 1 is the preferred method due to the high need for voting security. However, what I have seen reported on these systems, indicates that underlying licenses may prevent complete transparency in checking the code to prevent fraud at the software and system level. This may or may not be the case depending on the license in question, but here are some considerations that must be taken into account to set the record straight for future elections:

  • Standard IP licensing restrictions need not be barriers to fraud investigation. Software licenses (as well as platform agreements) tend to place not only restrictions on use, but bans on reverse engineering and disassembling software. This is commonly done to protect the code base – most customers do not require the source code for the software product, as the licensor deals with in-house software support. However, voting systems offer a different set of considerations due to the nature of the product. Based on my experience, states should negotiate warranty provisions for source code that incorporate allegations of improper operation of the program as a trigger event in order to allow the source code to be released to a mutually agreed criminal programmer to conduct necessary scrutiny under strict confidentiality restrictions. Voting platform providers may resist this step, but it does protect the code base while allowing for legitimate review.
  • Restrictions of confidentiality should not restrict legitimate review. Confidentiality restrictions are a common component of software licenses – similar to the above, they are designed to prevent unauthorized disclosure of confidential elements of the program and / or system. Unfortunately, they can be linked to termination provisions that allow for immediate termination of a license due to a breach, as well as exceptions to compensation protection and licensee’s liability limitations. Countries should insist on a separate non-disclosure agreement that not only contains exceptions to standard confidential information but also blanket permissions to accommodate court orders, valid government subpoenas, and Legitimate government audit requests. In this way, federal and / or state electoral agencies can seek information without the risk of material breach.
  • Data security can be used to ensure proper access. Without a doubt, the information that the vendors of election voting machines collect not only contains general information (such as your name and address), but also very personal information (such as How it voted). This information, of necessity, should be kept for election auditing purposes. Countries should not simply rely on standard supplier security disclosures or references to compliance with voluntary “standards” – rather, they should insist on stringent data-processing requirements that incorporate comprehensive audit provisions to ensure adequate access, review, and verification.

Of course, these are not exhaustive points but rather some steps that can (and should) be taken to protect the vote of all citizens. You may or may not agree with complaints against the voting machine systems used in these elections, but it is illogical to argue against the mechanisms that Should To be in place to ensure that voters are not deprived of the right to vote. Frankly, these companies must accept these requirements as necessary to participate in the voting scheduling process for the elections. Otherwise, the perception would be that they have something to hide that goes beyond their intellectual property, and that is something that should be unacceptable Each.


Tom Kulik is the Intellectual Property and IT Partner of the Dallas-based law firm Chef & Stone, LLB. In private practice for more than 20 years, Tom is a sought-after technical attorney who uses his industry experience as a former computer systems engineer to creatively advise and help his clients transcend the complexities of law and technology in their businesses. News outlets are reaching out to Tom to get his insights and he has been quoted by national media. Connect with Tom on Twitter (Embed a Tweet) or Facebook (www.facebook.com/technologylawyer), Or call him directly at tom.kulik@solidcounsel.com.


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