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

[Erasmussimo]

Digg is definitely in serious trouble here and this might well destroy the site. I doubt that they can claim common carrier protection -- can anybody correct me here? Otherwise, I can't see how they can win an infringement suit. Can anybody see any outcome that permits Digg's continued operation?

[mrshl]

If nothing else, yesterday's noise shows just how difficult the DMCA's takedown regime can be in the face of a determined user group. I think at least part of Digg's dilemma was the sheer impossibility of removing every instance of infringing content.

A separate issue is whether Digg, in fact, had to take the extreme actions it initially took after receiving only a single takedown notice. Google and YouTube's approach to the DMCA's safe harbor provisions share the impossibility problem with rightsholders by requiring new takedown notices when a new instance of infringement occurs. Obviously sending a takedown notice (and complying with those notices) becomes a lot more difficult when users insist on deluging the site with infringing material. Moreover, a court confronted with Digg's infringement will be similarly confronted with the fact that the key is now EVERYWHERE else too. It became a huge Web meme. You can't sue everyone. A law that requires everyone on the Internet to sweep sand out of the desert isn't going to find a lot of compliance.

But the larger issue is that yesterday's civil disobedience wasn't necessarily about DRM or watching illegal DVDs. It was about censorship of speech. The precedent you refer to says that a code or sequence can't be shared or published. It's against the law. Well, that's going a little further than most people are willing to accept. Tell them they can't post a Daily Show clip on YouTube and most people can make sense of that. But tell people they can't type a series of numbers or words, well, they're going to recognize that for what is. An abridgement of speech that, even if constitutional (and that's not clear to me at all) is impossible to enforce.

I don't think Digg's going to face much trouble, because I think a court's going to recognize how unworkable that precedent is, and they're going to graft a reasonableness standard onto it. If a takedown effectively becomes impossible (as it did last night), I've got to believe the takedown duty should evaporate.

[Kevin]

Though I can't claim your expertise or to have thought to hard about this, I would imagine any law should be open to civil disobedience. What differs between the traditional criminal act and civil disobedience is the moral obligation the person feels while doing so.

I have a moral and ethical aversion to the restrictions placed by the DMCA anti-circumvention clause and therefore dugg stories in a mild form of disobedience. Why is that moral standing any weaker than MLK's?

[Kimball Corson]

That's an easy question. Following Bush's leadership, we obey the laws we want to and ignore the rest. Gonzales will back us up.

[Bryan Hart]

Other stories about this say that Digg's second post was against the advice of counsel. From a business perspective, that decision does not make much sense to me; losing some customers is just an operating decision, but violating established law could be a strategic decision in that a successful lawsuit would end their entire business. Are their customers (or maybe just the important ones that diligently hunt through the content) so fickle that the site would be completely abandoned? Or maybe Digg just bowed to peer pressure.

[Ed Felten]

I wouldn't be so quick to dismiss the power of Digg's customers. Strip away the Web 2.0 lingo, and what we have here is a business reversing a decision that angered most of its loyal customers. Few if any businesses would stay the course in the face of so many customer complaints.

Digg's management simply decided that the risk of alienating its customers outweighed the risk of a lawsuit.

[Frank Bynum]

I'm disappointed at the narrow view of this issue you've taken. This is about more than "annoyance" at not being able to play HD-DVDs. In fact, I guarantee that many of the people that posted and "dugg" the offending stories have no intention of ever using the key to unlock an HD-DVD.

They participate to protest-- as they have for years now-- anti-circumvention provisions of the DMCA. This isn't about HD-DVD. It's about free speech and fair use.

[Erasmussimo]

I wonder if this case will become a kind of miniature Boston Tea Party for DMCA? No law can stand in the face of determined civil disobedience, and the anonymity size of the Internet makes civil disobedience of this kind easy to perpetrate.

As somebody who makes his living generating IP, I certainly favor IP protections. But the DMCA went too far, and it will eventually fail. The question is, will this case cause us to adjust our IP laws or is it a step towards the eventual abandonment of the concept of IP?

[Doug Lay]

The DMCA anti-circumvention provision uses a falsehood - that anti-copying TPMs are effective at stopping Internet piracy - as a pretext for establishing a legal regime that privileges one class of people (copyright holders) over another class (technology developers). I believe the law is bad enough to warrant civil disobedience, and of course I would not expect Pro. Picker to agree, any more than I'd expect Bull Connor to support sit-ins at Southern diners. Picker supports a law that I, along with many thousands of others, loathe. Even Bruce Lehman admits the law is a failure.

Erasmussino, if you want to salvage your precious concept of IP, maybe you could help educate Prof. Picker and his law-n-economics buddies on why the DMCA goes too far and is helping a large part of a generation to lose all respect for copyright.

[LAK]

What is the current status of the law? I don't keep up on it to closely. What does teh DMCA say about all this. can someone give me a primer?

Napster was shut down because it was a centralized server, but gnutella is not because it is just peer to peer with no centralization?

So Digg is a server and some software that allows its users to tag sites they think are cool, or "digg" I should say, and if enough people tag that site it appears on Digg's home page?

The funny thing to me is how inevitable this all was. Didn't this start becasue HD-DVDs can't be played on Linux boxes but only Windows ones?

[Erasmussimo]

Erasmussino, if you want to salvage your precious concept of IP
Is IP of no value to society?

[Erasmussimo]

Sorry, I meant to italicize the first line above.

[Doug Lay]

> Is IP of no value to society?

Ten years ago I would have said yes. Five years ago I would have said that the metaphor of property is problematic for products of the mind, but that the granting of special rights to creators is beneficial. Now....I really don't know.

[LAK]

http://www.eff.org/deeplinks/archives/005229.php

[Tim]

Prof. Picker, I'm curious what you think Digg should have done. The way the site works, the key would have continued to show up on the front page for as long as the users wanted it there. It's possible they could have implemented some kind of filtering mechanism, but that would have taken a few days, at a minimum, and even then the users would just set about finding clever ways to evade it. So their only real alternative was to shut down the site completely.

If a somewhat murky law seems to require you to do the impossible, is it really reasonable to expect them to shut down in order to avoid violating it? There's a decent chance the AACS-LA won't sue anyway, given that it would only bring still more publicity to the key and the absurdities of the DMCA. It seems quite plain that from a business perspective, at least, the Digg management made the only decision they could.

[Kevin]

I tried to get my ideas down and have equated this with MLK's March on Washington:

http://www.copyrightings.com/2007/05/digital-march-on-washington.html

I would be interested to hear your thoughts.

[Ed Felten]

My take is that those posting the key see this mainly as a free speech issue rather than a copyright or DRM issue.

[Phil]

We're developing a lot of really cool new round holes in the grand series of tubes and other technology that make up the interwebs, yet the content industry refuses to retool its square peg approach to its own product. Instead, it lobbies to have corners legislated onto everything. How long can that strategy be expected to work? It rarely effects me or my work, or even my leisure pursuits, and I still vaguely resent it.

[A. Programmer]

Frankly, the idea that the number
thirteen unodecillion, two hundred and fifty six decillion, two hundred and seventy eight nonillion,
eight hundred and eighty seven octillion, nine hundred and eighty nine septillion, four hundred and fifty seven hexillion, six hundred and fifty one pentillion, eigtheen quadrillion, eight hundred and sixty five trillion, nine hundred and one billion, four hundred and one million, seven hundred and four thousand, six hundred and forty...

is taboo is simply ridiculous! It's a big number, granted, but few things better illustrate the denial of reality of the intellectual monopolists than an attempt to outlaw a number, to prevent human beings from telling eachother a number like 42 or 1345678 or 13,256,278,887,989,457,651,018,865,901,401,704,640.

Personally, I'll probably never decrypt a HD-DVD, but damned if I'm going to let anyone tell me I can't say a number. Civil disobedience is absolutely called for.

[Phil]

/waits with interest to see how U of C handles this new dilemma.

[Bryan Hart]

It's not merely the posting of the number. It's that the number is used to break the law, and the postings make that purpose clear.

[Doug Lay]

Is it illegal to post information about how to break the law? Ever thumb thru an issue of High Times magazine? The difference with software is that information about how to build a device is also the device itself, in some cases.

[enigma_foundry]

First, there are many obvious reasons why this is an unjust law, and Ed Felten does an excellent job of pointing out the reasons on his website, freedom to tinker. Note that the key in question is just a number, not a program even. Without a program, and just the key, you wouldn't be able to play anything. To Ed's points, I would note that the key is to something that users may actually own-a Blu-Ray drive. So the analogy between this digital key and the combination, say to my bicycle lock, is broken.

But more interesting to me is for us to remember that our laws come about through social processes. And this means in the USA that the opinion of many cannot be so easily discounted as Randy Picker just did in his above analysis.

So, basically, the AACS LA is in a jam: If they over-use the DMCA, they will lose it, explored further here:
http://enigmafoundry.wordpress.com/2007/05/02/an-interesting-development-freedom-wins/

[enigma_foundry]

The AACS LA is desperately trying to spin their clamp down on the publication of the licensing key in terms other than free speech. Of course, they will lose this, as it is a freedom of speech issue. The key is just a number, and anyway you cut it, making the publication of a number illegal is wrong. I’ll summarize some of the reasons why, and most importantly, what is to be done about this below the fold.

http://enigmafoundry.wordpress.com/2007/05/05/dcma-use-it-and-you-will-lose-it/

[Peter Walker]

Professor Pickering, I have to take issue with your claim that the DMCA is in any way legitimate.

You see, the DMCA favors one particular group - namely, the entertainment industry - over all others.

Do you know what the term for this is?

DISCRIMINATION.

The DMCA permits discrimination, and discrimination has been deemed illegitimate in any form (as has been affirmed many times in courts of law).

Therefore, the DMCA is inherently illegitimate, and as such civil disobedience of the DMCA is warranted.