Digg in tough spot with DMCA debacle

Social news site responded to readers and defied a cease-and-desist letter pertaining to a cracked HD DVD encryption key.Photos: Legal fights over digital rights
Written by Caroline McCarthy, Contributor
It was a whirlwind Tuesday for the social news site Digg, complete with a cease-and-desist letter, a mutinous user base and speculation that it might get sucked into a legal battle.

In a blog post Tuesday afternoon, Digg CEO Jay Adelson wrote that the company was pulling down a number of news stories pertaining to a cracked HD DVD encryption key that could circumvent the digital rights management (DRM) restrictions on the media discs.

The reason, he said, was a cease-and-desist letter on behalf of the Advanced Access Content System (AACS), the consortium with ownership rights to the key that had been cracked. The organization cited Section 1201 of the Digital Millennium Copyright Act, which concerns the spread of information pertaining to DRM breaking. By including stories that linked to the key, the letter argued, Digg was breaking the law.

AACS representatives did not return requests for comment.

At first, there was no indication that pulling the stories would turn into the brouhaha it became. Digg, after all, is no stranger to cease-and-desist letters. "We've received a lot of notices in the past from all different companies," Digg founder Kevin Rose said in a telephone interview Wednesday with CNET News.com. The site has pulled stories related to everything from piracy to pornography to hate speech. "We receive anywhere from seven (thousand) to 10,000 new stories a day, so there's always something that pops up every couple of weeks," Rose said.

Additionally, Digg was not the sole target of the letter, Rose said. "A bunch of different sites have been getting these takedown notices," he said. The Web site Chilling Effects, for example, posted a copy of the same letter, which was also sent to Google concerning appearances of the key on blogs hosted on Google's Blogger platform.

Photos: Legal fights over digital rights

The Conde Nast-owned Reddit, a direct competitor to Digg, also received the cease-and-desist letter last week. "At the time, we complied with the takedown," said Kourosh Kharimkhany, general manager of Wired Digital, the Conde Nast division that operates Reddit. "An argument could be made that the number was still obscure (at that point) and that the secret could still be protected. In other words, they made a reasonable request, so we complied."

Kharimkhany confirmed that Reddit is no longer blocking story submissions or comments because he believes it's unreasonable for the AACS to try to keep the lid on it. "There's something like 56,000 search results on Google (for the key), so their secret is definitely out." The controversy appears to have left Reddit unscathed.

But the story was different at Digg. Its user base, notoriously opinionated and used to a community-run atmosphere with very little editorial control, revolted. "The Digg community is one that loves to have their voice heard, and this has been something that struck a chord with them," Rose said.

Members rebelled against what they saw as unnecessary censorship, flooding the site with submissions and comments containing the cracked key to the point where not a single one of Digg's top-ranked technology stories didn't pertain to the issue. And it reached beyond Digg, too. The HD DVD key made appearances in numerous blog and forum posts, Twitter messages and Photoshopped images all over the Internet.

In a blog post Tuesday night, Rose bowed to his site's readers. "After seeing hundreds of stories and reading thousands of comments, you've made it clear," he wrote. "You'd rather see Digg go down fighting than bow down to a bigger company...effective immediately we won't delete stories or comments containing the code and will deal with whatever the consequences might be." Rose even stressed his solidarity with the membership by posting the key in the title of his post.

Rose confirmed later that Digg has no plans to alter its policies or terms of use.

"I think as a founder of a large social site, it's very important that you pay attention and react to the people that are driving your community," he said, comparing the situation to that of social-networking site Facebook when it launched an unpopular feature called the "News Feed" last year. Many Facebook members saw it as an invasion of privacy, and in response to the outrage, company founder Mark Zuckerberg wrote an apology note and rolled out more privacy features for the News Feed.

"Mark did a great job of addressing (user) concerns," Rose said. "You have to realize that it's not just your site. It's the community that drives it and makes it succeed, and you have to work with them and pay attention to what they have to say."

Now, the question for Digg is what happens next. Copyright experts say the site could face a legal tussle, but argue that Digg's issues aren't likely as vexing as the legal challenge Google's YouTube faces in a $1 billion lawsuit by media conglomerate Viacom.

"You are publishing something that allows somebody to circumvent the digital rights management. It's a relatively narrow clause, and the liability has to do with publishing the algorithm," said Kraig Baker, chair of technology practice at the Seattle law firm Davis Wright Tremaine. Digg's issue doesn't deal with the same kind of liability that's derived from posting a Colbert Report clip on YouTube, for example.

But at the same time, "it does fit into the larger conversation of where the lines are going to be drawn," Baker said.

Still, Digg is in a tough spot as it tries to please its audience and avoid legal hassles. Digg "made their choice already about what's important to them, and that is the community," Baker said. "They serve a relatively volatile community in that it's one that has very strong viewpoints and very strong opinions about what's right and what's wrong. And when you have a community that has very strong views about how something is going to happen, you are hamstrung a little bit about the kinds of policies you can put in place."

Kharimkhany of Wired Digital said it was inevitable that Digg would at some point have to deal with this sort of issue. "I think it's a demonstration of Digg's user community's affinity for the site and the power of sharing the news," he said. "If it wasn't this event, if it wasn't this particular topic, it would have been another topic where this would have happened."

"We're definitely curious to see what happens next," Kharimkhany added.

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