Digg Reverses Course After Online Uproar

Digg Reverses Course After Online Uproar
May 3, 2007

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The Web site Digg — where people get to submit links to articles and blog items that they think others should pay attention to — has been involved in a hailstorm of controversy this week over its initial adherence and eventual rejection of a legal notice from a movie industry anti-piracy group.

At issue is a 16-digit hexadecimal code that hackers can use to attempt disable the copy protection built into high-definition DVDs. That code — which could help someone copy these otherwise “protected” discs — has been circulating on the Internet for months. Most people probably never paid much attention to it until this week when Digg responded to a cease and desist letter by removing all references to the hack code on its site.

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  CBS News tech consultant Larry Magid talks to Fred Von Lohmann, intellectual property attorney of the Electronic Frontier Foundation (audio)

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The decision generated thousands of user posts objecting to Digg’s decision to go along with the demands of the Advanced Access Content System (AACS) Licensing Administrator to remove the type of code that AACS refers to on its Web site as “attacks against certain PC-based applications for playing HD DVD and Blu-ray movie discs.”

After assessing the user reaction, Digg made the decision to defy the AACS legal claim and allow its users to put the offending code in postings on the site. In his posting, Digg founder Kevin Rose wrote, “We had to decide whether to remove stories containing a single code based on a cease and desist declaration. We had to make a call, and in our desire to avoid a scenario where Digg would be interrupted or shut down, we decided to comply and remove the stories with the code.”

But Digg officials changed their minds. “After seeing hundreds of stories and reading thousands of comments, you’ve made it clear,” Rose wrote. “You’d rather see Digg go down fighting than bow down to a bigger company.” So Digg has promised not to delete story comments with the code “whatever the consequences might be. He defiantly concluded “if we lose, then what the hell, at least we died trying.”

But Fred Von Lohmann, intellectual property attorney for the Electronic Frontier Foundation, doesn’t think there’s much chance that Digg will “die” as a result of the decision.

“It’s very unlikely that the AACS is going to sue Digg over this,” he said in an interview.

If anything, this could backfire on the security licensing organization. “Frankly,” said Von Lohmann, “this has to be viewed as a big mistake by the AACS gang, because the story had already come out in February and it was not until the lawyers started getting involved that the story suddenly became a huge Internet phenomenon.

There are two issues here, according to Von Lohmann. One is the copy protection itself and the other is the free speech implication of trying to suppress the publication of a series of numbers and letters.

The Digital Millennium Copyright Act (DMCA) prohibits decrypting or bypassing copyright technologies without permission. So, while it’s perfectly legal to make a personal copy of a copyrighted but unprotected CD, it’s not legal to do the same with a copy-protected DVD, even though, from a copyright perspective, the content of both enjoy exactly the same level of protection. What’s at issue is defeating the copy protection scheme.

This provision in the DCMA has been tested many times and, so far, the courts have ruled against companies and individuals that have developed or distributed software or other technologies to circumvent copy protection. In 2004, for example, software developer 321 Studios was forced to close its doors after reaching a settlement with the Motion Picture Association of America. MPAA objected to the company’s Copy Plus software that was designed to duplicate copy-protected DVD movies. Courts in New York and California both ruled against the company, essentially scuttling its attempts to offer consumers a way of copying movies.

In a case a little closer to the issue facing Digg, in 2000, MPAA successfully sued an online hacker magazine called 2600 after it offered readers access to a piece of software called DeCSS, which was designed to decrypt certain copy-protected DVDs.

Digg, however, is not distributing software or any other complete decryption tools per se, but is allowing its users to post a short string of code — numbers and letters — that can aid hackers who wish to break the DVD encryption. Because these are numbers and letters and not a complete software tool, it isn’t clear whether publishing the code would be considered First Amendment-protected speech or distributing tools for breaking encryption.

Lohmann says that we’re in muddy legal waters. “It’s not just illegal to crack the encryption yourself without permission, it’s also illegal to circulate or distribute or post software or other components that might be used to do that.”

So, from a legal standpoint, the question is whether this string of code is a component of a decryption tool that is prohibited under the DCMA or a form of speech that is protected under the First Amendment.

In the digital world, said Lohmann, “The line between those things is very, very murky.” He added that the licensing entity is claiming that this string of letters or numbers is essentially contraband. But Lohmann argues that “any law that prohibits you from uttering certain letters and numbers treads awfully close to the First Amendment.”

The other issue is the propriety of provision of the DCMA that prohibits attempts to disable copy protection. Regardless of the free speech issue, that alone is highly controversial. “Many folks resent the copy protection and restriction technologies that are being built into HD-DVD and Blu-Ray discs” said Lohmann, “so once they started sending lawyer letters out to people, it really drew the ire of a very large number of Internet consumers.”

And there’s yet one more issue to consider. Digg is not a publishing company in the traditional sense, but, like MySpace, Facebook and other Web 2.0 social networking companies, it is a place where individuals can post pretty much whatever they want. Like YouTube, Digg does have responsibility to remove illegal material including copyrighted material that’s posted without permission. But in this case, the offending material isn’t copyrighted, even thought it can be used as a component in a tool designed to make illegal copies of copyrighted material.

Whew, we all know that technology can be confusing but law, in the era of Web 2.0, can be baffling, even for experts like Fred Von Lohmann.