Digg This?: What Laws Must We Obey?

The last 24 hours have been particularly interesting on the website digg.com. If you don’t digg—and I don’t—digg is a social aggregation website for content. Put differently—that is in English—Digg effectively lets users continuously vote on cool content. Content that gets sufficiently digged works it way to the front page of the website and Digg then links to the original website posting the content. Yesterday, content that Digg believed that it had a legal obligation to not link to made it to the site’s front page. Digg initially removed the links, and then backed away when its users continuously digged sites with the impermissible content. This case raises questions about civil disobedience in an electronic age and what laws are worthy of our obedience.

Yesterday, Digg faced a problem: its users had pushed to its front page a story that set forth a hexadecimal key for unlocking HD-DVD encrypted content. Digg dropped that story in response to a complaint from the intellectual property holders. As Jay Adelson noted at 1 pm on the Digg blog:

Whether you agree or disagree with the policies of the intellectual property holders and consortiums, in order for Digg to survive, it must abide by the law. Digg’s Terms of Use, and the terms of use of most popular sites, are required by law to include policies against the infringement of intellectual property. This helps protect Digg from claims of infringement and being shut down due to the posting of infringing material by others.

So Digg took down the offending link.

And then its real problems started, as it was hit with a user tsunami: users repeatedly digged stories that contained the DRM key, and soon all of the stories on Digg’s front page dealt with the key. By 9 pm, Digg retreated, seemingly no longer believing that abiding by the law was its duty. In a post on the Digg blog that contained the critical hexadecimal code in its title, Kevin Rose, the founder of Digg, backtracked:

But now, after seeing hundreds of stories and reading thousands of comments, you’ve made it clear. You’d rather see Digg go down fighting them 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.

Yesterday was undoubtedly a difficult day for Digg, and the different posts on the Digg blog show the difficulty of making decisions in short periods and doing so transparently. I don’t know what to make of how Digg thinks about its legal obligations. The initial post recognizes those obligations, while the later post attempts to turn the dispute away from law and instead towards a David/Goliath business dispute.

As to law, as Digg’s attorneys undoubtedly told it yesterday, the leading decision addressing the legitimacy of linking to decryption tools is Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2nd Cir. 2001). That case deals with the prior iteration of this situation—the ordinary DVD—and the program for decrypting it, DeCSS. In that case, the Second Circuit validated an anti-linking injunction (“under the circumstances amply shown by the record, the injunction’s linking prohibition validly regulates Appellants’ opportunity instantly to enable anyone anywhere to gain unauthorized access to copyrighted movies on DVDs”).

That takes us to the question of civil disobedience. My operating assumption is that there are some laws that individuals will appropriately conclude that they should disobey, laws that while enacted pursuant to the extant applicable procedures, are nonetheless beyond the scope of what should be law in a well-constituted society. In those circumstances, civil disobedience will be appropriate and we should be grateful to those who are willing to suffer the consequences of disobeying illegitimate law.

I wouldn’t think that not being able to play an encrypted high-definition DVD on your platform of choice would fall into that category. I understand fully that people disagree about whether digital rights management and the Digital Millennium Copyright Act are good copyright policy. I also understand that users can be frustrated by limitations imposed by DRM (I’ve run into those myself). But I think the DMCA (and the DRM that it makes possible) is a long, long way from the sorts of laws for which civil disobedience is an appropriate response. Simply not liking the law is not enough. There must be more, something that recognizes the nature of reasonable disagreement over law, and the range of possible legitimate variations about those laws.

Yesterday, Digg probably made a business decision: it can litigate tomorrow but it was going to lose customers today. I doubt that it made a decision about the need for civil disobedience, and as I have suggested already, I am skeptical that it could justify its decision in those terms and it certainly didn’t do so in its 9 pm post. Digg’s users will presumably speak for themselves, just as they did yesterday in enormous numbers.

Comments

[enigma_foundry]

"Other stories about this say that Digg's second post was against the advice of counsel...."

Yes, so was the NYT's decision to publish the Pentagon Papers.

THANK GOODNESS THAT PEOPLE SOMETIMES DON'T ONLY LISTEN TO LAWYERS...