Digg and cracking HD-DVD: Reimerdes comes to social news

Techmeme is all a-flutter, and my ZDNet colleagues have been right on top of the Digg/HD-DVD crack story.  Here's my quick take on things, as I run off to OnHollywood (where Kevin Rose spoke this morning):

Nothing says Digg has to respond to a mere demand letter under any circumstances.  Demand letters are shots across the bow, an effort to get a potential adversary to capitulate without all the bother of litigation and without fully ventilating the issues.  See Chilling Effects if there is any doubt in your mind on this point.

At first blush this situation looks like Universal v. Reimerdes, the infamous case where the Second Circuit affirmed a trial court's finding that 2600 Magazine had violated the anti-circumvention portions of the DMCA by posting DeCSS.

But Digg isn't a magazine, online or otherwise.  It's a social news site populated by user submissions.

If the AACS Licensing Authority decides to take this to the next step and file suit, there's the opportunity for a very interesting test of the scope of Section 230 of the Communications Decency Act.  (For some great context and discussion, catch EFF's Kurt Opsahl on Rules for the Revolution #009.)  Now, Section 230 does not immunize a provider of interactive computer services from liability related to users committing federal crimes.  But here, we're not necessarily talking about crimes under the anti-circumvention provisions of the DMCA.  As I understand it, the demand Digg received (like other related ones) was from a private party.  We're not talking about a DOJ investigation and charges; this isn't Sklyarov.  The anti-circumvention provisions include both criminal and civil penalties, and the criminal ones only attach when violations are determined to be willful and for commercial or private financial gain.  Hence, I see no reason at this point why Section 230 shouldn't be very much in play.

So, good for Digg, and for Kevin Rose, and I hope they'll stick to their guns.  (Though with all this in mind, if I were their lawyer I'd have preferred that Kevin not post the code on the official Digg blog.)