Digg Does The Right ThingDigg Does The Right Thing

Digg found itself in the middle of a classic journalistic dilemma yesterday and it made a decision that gives me hope for the future of journalism on the Internet: it decided that its first obligation was to the free flow of information. It's especially interesting since Digg was responding to a censorship demand based on the Digital Millennium Copyright Act (DMCA), because it came on the same day that Google invoked the DMCA as a defense in a similar case. Wouldn't it be ironic justice if the DMCA, which Hollywood bought from Congress in 1998, turns out to be the Internet's best defense against Hollywood?Digg's troubles began with posts on its site that included the encryption key that unlocks the Advanced Access Content System (AACS), the digital-rights management scheme designed to prevent the copying of HD DVD and Blu-ray disks, legal and otherwise. Digg got a lawyer letter from the AACS Licensing Administration demanding that it censor the posts. It complied, and put up a blog post early yesterday afternoon announcing its decision. The action set off something of a firestorm among Digg's audience, and last night the founder of Digg posted a second blog entry that announced Digg had changed its mind and would stop removing posts that contain the key.

I've got several questions about the whole thing. First and foremost, why in the world would the AACS Licensing Administration pull such a bone-headed move? The net result (pun intended) has been to propagate the encryption key far beyond its previously limited distribution. (Techdirt.com has a great entry that calls this the Streisand Effect.)

Second, I'd love to see the letter from the lawyers, to know exactly what they're basing their claim of DMCA violation on. IANAL but my understanding of Title I of the DMCA is that you don't actually have to intend to violate a copyright in order to fall afoul of it. The simple act of circumventing a copy-protection scheme is made a criminal act by the DMCA. But you don't even have to go that far to make yourself a felon: all you really have to do is distribute information that helps somebody else circumvent a copy-protection scheme.

Title II of the DMCA, on the other hand, provides online service providers a "safe harbor" against copyright liability if they adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to allegedly infringing material (or remove such material from their systems) once the copyright holder notifies them of specific acts of infringement. (Viacom's billion-dollar lawsuit charges that YouTube.com, now owned by Google, hosts some 160,000 unauthorized clips from Viacom TV shows.

I suppose Google's defense is that it will remove them as soon as it receives 160,000 notifications. Viacom (and by extension the AACS Licensing Administration) is bound to be the loser if that's the case. Internet posters can flood a site with reposts far faster than any one company can afford to generate notifications. Just look at what happened to Digg yesterday -- a poster calculated there had been 50,000 diggs in support of stories containing the encryption code. Digg's managers obviously felt the site's credibility with its audience was at risk. Digg founder Kevin Rose even put the encryption code into the headline of his blog post announcing the reversal of the censorship decision.

Finally, I wonder where this leaves us. It's not news that the DMCA is very, very bad law. It was Hollywood's sneak attack on the legal doctrine of fair use. If you own a music CD, for example, you have the time-honored right under copyright law to make a copy of it on a cassette tape, or as MP3 files. The DMCA is a dishonest attempt to prevent you from exercising your fair use rights by making simply knowing how a criminal act. Title I should be repealed. (Title II, on the other hand, should be expanded. It is the modern-day equivalent of the First Amendment.)

If Google's DMCA defense prevails, Viacom and the TV networks and Hollywood studios will be forced to try to drive the proliferating video sites out of business completely the same way they went after Napster and similar music-swapping sites, but those will be much harder cases to make. I'm cynical enough to think that if DMCA Title I attacks on sites like Digg don't curtail free speech, and DMCA Title II turns out to work against Hollywood instead of for it, a Final Solution, an all-out attack on our rights of fair use, won't be far behind.