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.

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.