I'm certainly not the first to pontificate on Digg's decision earlier today to restore numerous, well, Diggs to an article that contains code for hacking HD-DVDs.
I do have a somewhat different take than others, however.
IMHO Digg is an aggregator, not a publisher.
In the offline world, a newsstand or bookstore that sells magazines or books that tell you how to do illegal stuff cannot be prosecuted. Perhaps the authors of those works can be prosecuted, and maybe even the publishers of those works can as well, but not the conduit.
Or in a more technocentric application, let us say that you and I exchange emails about how to commit an illegal or vile act.
Both of us might be subject to prosecution, but not our ISPs. They are simply conduits for that information.
Perhaps the argument most central to Digg comes from Digg's own Terms of Service.
Let's go to Section 9. Bold Face is mine:
The Services may provide, or third parties may provide, links to other World Wide Web sites or resources. Because Digg has no control over such sites and resources, you acknowledge and agree that Digg is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any Content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Digg shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content, goods or services available on or through any such site or resource.
I'm sure there will be lawsuits, but the way I see it, Digg is in the right.