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Individual Liberties and Intellectual Property Protection—Proprietary Fordham Intellectual Property, Media and Entertainment Law Journal Volume 19 Volume XIX Number 3 Volume XIX Book 3 Article 2 2009 Individual Liberties and Intellectual Property Protection—Proprietary Software in Digital Electronic Voting Machines: The Clash Between a Private Right and a Public Good in an Oligopolistic Market. Brenda Reddix-Smalls Franklin Pierce Law School Follow this and additional works at: https://ir.lawnet.fordham.edu/iplj Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Brenda Reddix-Smalls, Individual Liberties and Intellectual Property Protection—Proprietary Software in Digital Electronic Voting Machines: The Clash Between a Private Right and a Public Good in an Oligopolistic Market. , 19 Fordham Intell. Prop. Media & Ent. L.J. 689 (2009). Available at: https://ir.lawnet.fordham.edu/iplj/vol19/iss3/2 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Intellectual Property, Media and Entertainment Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. Individual Liberties and Intellectual Property Protection—Proprietary Software in Digital Electronic Voting Machines: The Clash Between a Private Right and a Public Good in an Oligopolistic Market. Cover Page Footnote I would like to thank the faculty and staff of Franklin Pierce Law School for their invaluable support without which this publication would not have been possible. My sincerest thanks to my family, Milton, Khalfani, Emeka and Kay; and to my student researchers Linda Hyunh, T. Primianno, J. Damani, D. Silva and R. Woods. This article is available in Fordham Intellectual Property, Media and Entertainment Law Journal: https://ir.lawnet.fordham.edu/iplj/vol19/iss3/2 VOL19_BOOK3_REDDIX-SMALLS 4/21/2009 7:53:39 PM Individual Liberties and Intellectual Property Protection—Proprietary Software in Digital Electronic Voting Machines: The Clash Between a Private Right and a Public Good in an Oligopolistic Market Brenda Reddix-Smalls∗ ABSTRACT .................................................................................... 690 INTRODUCTION ............................................................................. 691 A. The Oligopolistic Marketplace ..................................... 695 I. THE CONFLICT: BALANCING THE RIGHT TO VOTE VS. INTELLECTUAL PROPERTY RIGHTS ........................................ 698 II. INDIVIDUAL LIBERTIES: CONSTITUTIONAL PROTECTION FOR THE RIGHT TO VOTE ..................................................................... 707 III. HAVA AND THE PROVISION OF FUNDS .................................. 719 IV. INTELLECTUAL PROPERTY RIGHTS: COPYRIGHTS—FEDERAL PROTECTION FOR A PROPERTY INTEREST .............................. 723 A PDF version of this Article is available online at http://law.fordham.edu/publications/ article.ihtml?pubID=200&id=3022. Visit http://www.iplj.net for access to the complete Journal archive. ∗ I would like to thank the faculty and staff of Franklin Pierce Law School for their invaluable support without which this publication would not have been possible. My sincerest thanks to my family, Milton, Khalfani, Emeka and Kay; and to my student researchers Linda Hyunh, T. Primianno, J. Damani, D. Silva and R. Woods. 689 VOL19_BOOK3_REDDIX-SMALLS 4/21/2009 7:53:39 PM 690 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 19:689 A. Source Code and Object Code and Copyright Protection...................................................................... 728 V. TRADE SECRETS—STATE INTELLECTUAL PROPERTY PROTECTION .......................................................................... 731 A. Oligopoly in the DRE Marketplace .............................. 739 1. The Prisoner’s Dilemma and Voting Rights ......... 739 CONCLUSION................................................................................. 764 ABSTRACT The convergence of intellectual property protections afforded software, the fundamental liberty interests of voting rights of Americans and the conduct of voting machine vendors within an oligopolistic marketplace signals grave consequences for the public. In an election, Direct Recording Electronic voting machines (“DREs”) could be subject to malfunctions, inaccuracies and security problems. The DRE vendors have consistently failed to improve the voting machines or allow access for independent auditing and security testing. The vendors have operated collectively to maintain current inefficient output quality. Acting in concert to obtain higher pricing, the vendors operate against their individual self-interests, claiming proprietary protections. The result of this oligopoly is serious—the voting process, a public good, is diminished. Ultimately the federal judiciary and Congress will face the task of balancing these interests within the context of an oligopolistic marketplace. At risk is an American liberty. VOL19_BOOK3_REDDIX-SMALLS 4/21/2009 7:53:39 PM 2009] INDIVIDUAL LIBERTIES AND IP PROTECTION 691 INTRODUCTION A small number of vendors1 fueled by federal dollars2 supply the majority of Direct Recording Electronic voting machines (or “DREs”)3 to states in federal elections.4 These few DRE vendors 1 A handful of companies provide the majority of the voting machines to the states for federal elections including: Election Systems & Software (“ES&S”) (thirty-nine states), Premier (thirty-one states), Sequoia (eighteen states), Hart InterCivic (twelve states), MicroVote (three states), Advanced (two states). See infra Appendix I. Company names were provided in response to a Freedom of Information Request sent by the author to all fifty states, the responses of which are on file with the author. 2 Help America Vote Act of 2002 (“HAVA”), Pub. L. No. 107-252, 116 Stat. 1666 (codified at 42 U.S.C. §§ 15301–545 (2006)). HAVA became public law on October 29, 2002. Id. Among other matters HAVA established a program to provide funds to states to replace punch card voting systems and provided minimum election administration standards for states and units of local government with the responsibility for the administration of federal election. Id. HAVA provided over three billion dollars to the states over four years to incentivize their transition to voting machine technology and to update election administration standards. See the U.S. Election Assistance Commission (“EAC”) for the list of vendors registering for certification under HAVA. 2006 U.S. EAC Ann. Rep. 22, available at http://www.eac.gov/about/report/docs/eac- 20ar2006.pdf/attachment_download/file [hereinafter 2006 ANNUAL REPORT]; see also Daniel P. Tokaji, The Paperless Chase: Electronic Voting and Democratic Values, 73 FORDHAM L. REV. 1711, 1732 (2005) (“The legislation eventually enacted (HAVA) sets modest mandates for voting systems, while attempting to give the states incentives to upgrade to better technology. Title I of HAVA authorizes $650 million in payments to the states, half of which is for the replacement of punch-card ballots and lever voting machines. States that choose to receive payments under Title I are obligated to replace their punch card and lever voting equipment by November 2004 . .”). 3 The terms ‘direct recording electronic’ voting machines and ‘digital recording electronic’ voting machines (“DREs”) are used interchangeably. See Michael A. Carrier, Vote Counting, Technology and Unintended Consequences, 79 ST. JOHN’S L. REV. 645, 646 (2005) (describing electronic voting machines by saying that “electronic voting machines [are] known as direct recording electronic devices (DREs)”); see also DIMITRIS A. GRITZALIS, SECURE ELECTRONIC VOTING 33 (2003) (“The fully computerized systems are of two formats—Direct Recording Electronic (DRE), where a voting kiosk (similar to an automatic bank teller machine) is provided at designated polling places, or networked systems that are used remotely, possibly via Internet/Web access.”); James Belmont Conn, Race Against the Machine: An Argument for the Standardization of Voting Technology, 12 WASH. & LEE J. CIVIL RTS. & SOC. JUST. 181, 231 (2006). Conn describes various voting technologies, such as Electronic Systems: With electronic voting, voter choices directly enter electronic storage, using touch screens, push buttons or keyboards. Machines are typically programmed to prevent overvoting. The most common models are ‘full faced,’ showing all contests at once, like lever machines, and a flashing red light alerts voters to the contests in which they have not yet voted. VOL19_BOOK3_REDDIX-SMALLS 4/21/2009 7:53:39 PM 692 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 19:689 effectively operate as an oligopoly—controlling price and access.5 Simultaneously, within these DREs, the federally protected right to vote and the vendor’s rights in intellectual property are clashing as competing interests.6 Scholars of divergent viewpoints have analyzed transparency, accuracy and software security issues attributable to electronic voting machines,7 including the lack of a paper ballot.8 Many Id. 4 Using HAVA as a base, the fifty states were sent a Freedom of Information request, as this was the most straightforward method to track purchases made with federal funds since 2002, when the Act was passed. The fifty states purchased their direct electronic voting machine separately from the following most frequently named
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