The rules of the road were fairly clear to Kevin Rose, founder ofDigg, until this week.
Users generally were given free rein, except when they violated the site’s terms of use — for example, by linking to porn or racial hate sites, or to illegal downloads.
Recent events have thrown Rose off his stride, though.
Digg received a cease-and-desist letter from an unnamed source requesting that it remove stories containing a single code that provided a way to crack HD DVD encryption.
At first, Digg complied — at least, it tried to. However, enraged users kept reposting the material in increasingly ingenious ways in order to circumvent Digg’s compliance efforts.
On Tuesday, Digg gave in to its users’ demands.
As Rose says in a blog posting on the site: “After seeing hundreds of stories and reading thousands of comments, you’ve made it clear. You’d rather see Digg go down fighting than bow down to a bigger company. We hear you, and effective immediately we won’t delete stories or comments containing the code and will deal with whatever the consequences might be.
“If we lose, then what the hell, at least we died trying.”
Real Threat
The possibility that Digg may indeed go down is quite real. However, beyond the legal issues in yet another Web 2.0-inspired brouhaha, there is the larger question of what this capitulation means to the social networking space.
To be sure, user revolts do occur from time to time on social networking sites.Facebook’s users, for example, decried site design changes that they felt revealed too much real-time information, and the site quickly backed down.
Digg’s response, though, is probably unprecedented, as its first impulse to comply was the legally correct one. The Digital Millennium Copyright Act gives Web sites protection if they voluntarily remove copyrighted information posted without their knowledge, explained Steve Chang, a partner with Banner & Witcoff.
The DMCA also makes it illegal to circumvent copyright protection schemes, he told the E-Commerce Times. Both provisions now place Digg squarely in the cross hairs. That it chose to listen to its users instead of its lawyers speaks volumes.
“This does say a lot about the power of social networks — especially one that is fueled on a daily basis by Digg’s rather intense and active set of users,” Michael Boland, an analyst with the Kelsey Group, told the E-Commerce Times.
“Digg users essentially power the daily value of its network and, with enough collective will, have the ability to overpower any attempts to suppress the free flow of information.”
Freedom of Speech
Philosophical arguments, in part, fueled Digg users’ ire, according to Carole Enid Handler, vice-chair at Foley & Lardner and adjunct professor at Rutgers University Law School.
“It is a very emotional debate about who owns content and freedom of speech, and enriching large corporations,” she told the E-Commerce Times.
Unfortunately for the users, legal rulings have not supported their views. One argument that came close — but failed to convince the courts — is that posting copyrighted information such as code encryption is a matter of free speech.
The courts have consistently found that if the only reason for posting such code is to violate a content owner’s copyright, then it is illegal, Handler said. If there were another reason, then, theoretically, it could be OK. However, no such reason has yet been sanctioned by the courts.
As for the apparent motivations of Digg users — outrage over the alleged entertainment and recording industries’ mandate to remove the material — Handler doubts that would meet the requirements for protection of free speech.
“Nobody has ever allowed psychological venting of anger as a valid reason for copyright infringement,” she dryly noted.
Draconian Steps
Digg’s users may be unprepared for how far the copyright owners are prepared to go. Legally, they have the right to ask for an injunction against Digg. They also have the right to sue the individual posters — a move that such organizations as the RIAA (Recording Industry Association of America) has proven in the past to be perfectly willing to make.
Probably, Handler speculated, any future legal efforts would aim to compel Digg to implement draconian filters to keep such content off the site in the first place.
“They want the site owners to take responsibility,” she said.
Practical Measures
Of course, it is likely the copyright owner is now wishing the whole mess would just go away. Before the outcry developed, the code was not a top news story. Now a quick Google search yields thousands of Web sites and postings devoted to it.
“What some corporate and legal communities can’t seem to grasp, despite constant examples, is that cease-and-desistletters often increase exposure and activity around the very activities or movements they are trying to stop,” Kelsey Group’s Boland noted.
“In this case, it propagated distribution of the HD DVD encryption key well beyond the levels prior to the legal action.”
Also, the legal maneuvering is garnering a lot of sympathy for the Digg community.
Even though the law may be on the copyright owners’ side, “if it were me, I would not try to shut down a site or put a block on information,” Ilan Barzilay, a partner with Wolf Greenfield, told the E-Commerce Times. “It can easily backfire.”
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