Digg Gives In To User Revolt; Are Those DMCA Takedown Notices Even Valid?

After a grassroots revolt by Digg users, Digg has decided to stop censoring posts about an HD-DVD decryption number used by the industry-backed Advanced Access Content System to protect HD-DVDs. The AACS claims that anyone publishing the number may be violating US laws against circumvention of copy protection. How the story unfolded below, plus more on how the DMCA takedown notices being issued by the AACS to Google don’t seem to be valid and certainly aren’t like the usual ones fired off for actual copyright theft.

Digg This: 09-f9-11-02-9d-74-e3-5b-d8-41-56-c5-63-56-88-c0 from Digg founder Kevin Rose is his white flag of surrender to upset Diggers. Rose uses the controversial number as the title of his post and says that Digg will no longer be pulling submissions about the number:

We had to decide whether to remove stories containing a single code based on a cease and desist declaration. We had to make a call, and in our desire to avoid a scenario where Digg would be interrupted or shut down, we decided to comply and remove the stories with the code.

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 than 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.

If we lose, then what the hell, at least we died trying.

The saga started two days ago. Boing Boing writer Cory Doctorow wrote about how he had been subjected to a DMCA complaint (PDF file) about publishing the number on a class blog using Google’s Blogger. He pulled down the material, then did a follow-up post pointing to Spread this number, which listed the number and explained a bit about its importance.

That site became a popular story on Digg here on April 30, then was removed. That upset CJ Millisock. He made a copy of the "Spread this number" page and submitted it to Digg as "Spread This Number. Again" here.

That story gained what appears to be a record number of 15,492 Diggs. Then it was pulled. So was Millisock’s Digg account. How I got banned from Digg from him covers how his story climbed and then his account was closed, complete with screenshots of the now famous story.

The crowdwisdom went wild. Diggers started submitting story after story about the number, keeping the Digg home page buzzing with entries. Mob Takes Over at Digg, Widespread User Revolt from Pronet Advertising has a screenshot of some of the revolt.

Digg’s CEO Jay Adelson stepped in to try to calm the crowds. In What’s Happening with HD-DVD Stories?, he explained that Digg had to remove the stories to comply with US law:

We’ve been notified by the owners of this intellectual property that they believe the posting of the encryption key infringes their intellectual property rights. In order to respect these rights and to comply with the law, we have removed postings of the key that have been brought to our attention.

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.

Adelson didn’t publish or point to any actual takedown notice, so it’s hard to tell whether this was a formal legal complaint as required by law or just a heads-up that one might be coming. Despite his explanation, Diggers remained upset. Stories kept flowing in until Rose threw in the towel. He may have wanted to anyway; Valleywag reports he was among those that dugg one of the stories, helping it rise to prominence.

For those trying to understand more about the number, The New HD-DVD/Blu-Ray Hack: What It Might Mean For Us from Wired explains more about how the number was hacked and can be used to override digital rights management in HD-DVDs.

Question: What are the DMCA’s anti-circumvention provisions? from Chilling Effects explains more about a relatively new addition to the Digital Millennium Copyright Act that makes circumventing copyright protection a violation of US law:

The DMCA contains four main provisions:

  1. a prohibition on circumventing access controls [1201(a)(1)(A)];
     
  2. an access control circumvention device ban (sometimes called the "trafficking" ban) [1201(a)(2)];
     
  3. a copyright protection circumvention device ban [1201(b)]; and,
     
  4. a prohibition on the removal of copyright management information (CMI) [1202(b)].

The first provision prohibits the act of circumventing technological protection systems, the second and third ban technological devices that facilitate the circumvention of access control or copy controls, and the fourth prohibits individuals from removing information about access and use devices and rules. The first three provisions are also distinguishable in that the first two provisions focus on technological protection systems that provide access control to the copyright owner, while the third provision prohibits circumvention of technological protections against unauthorized duplication and other potentially copyright infringing activities.

Publishing instructions rather than actual devices does not seem to be a violation of this particular part of the DMCA, to my non-legal but common sense eyes. Frankly, the AACS seems to be stretching those provisions to suggest that simply writing about how to override copyright protection is a violation of the DMCA, one that might require information to be taken off the web.

Here’s an example of another takedown notice sent to Google for pages the AACS wants removed (this is just one of several). Note the language:

It is our understanding that you are providing to the public the above-identified tools and services at the above referenced URL, and are thereby providing and offering to the public a technology, product, service, device, component, or part thereof that is primarily designed, produced, or marketed for the purpose of circumventing the technological protection measures afforded by AACS (hereafter, the "circumvention offering").

I’ve bolded the key part that stands out. Publishing a number is a "technology" or "service" or "device" or "component?" I think not. I don’t even think full-blown instructions would fall in this area.

In contrast, the DMCA is more routinely used for other provisions that apply to the copyright of actual content — images, writings, videos — that are published by others. This is important. The claim the AACS is making is NOT that the number itself is copyright protected. Instead, it is claiming that publishing the number is akin to producing a device meant to override copyright protection.

I hope Google and other search engines aren’t acting on these requests, as they don’t seem to be valid. They are completely unlike the regular DMCA takedown notices used for actual copyright infringement.

For more discussion of the Digg controversy, see the ample commentary at Techmeme.

Related Topics: Channel: Social | Legal: Censorship | Legal: Copyright | Search Engines: Digg

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About The Author: is a Founding Editor of Search Engine Land. He’s a widely cited authority on search engines and search marketing issues who has covered the space since 1996. Danny also serves as Chief Content Officer for Third Door Media, which publishes Search Engine Land and produces the SMX: Search Marketing Expo conference series. He has a personal blog called Daggle (and keeps his disclosures page there). He can be found on Facebook, Google + and microblogs on Twitter as @dannysullivan.

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  • http://www.eyefall.co.uk/blog ciaran

    “The crowdwisdom went wild”

    Never was a more oxymoronic phrase used in a more inronic way. Nice summation Danny.

  • graywolf

    here’s the full screenshot from last night

  • http://sethf.com/ Seth Finkelstein

    “Publishing instructions rather than actual devices does not seem to be a violation of this particular part of the DMCA, to my non-legal but common sense eyes.”

    AAIIIEEEEE!

    Danny, you’re one of the world’s top search experts, but you’re out of your area of expertise here :-) :-) :-)

    There’s literally *years* and *years* of litigation on this subject.

    Let me send you some stuff by email, I find comment-boxes painful for anything that’s long and references.

  • http://onlinesaleschannels.wordpress.com/2007/05/02/digg-cease-and-desist-a-number-and-the-best-viral-marketing-everall-by-the-mpaa/ Jeffrey Buechler

    This is the Boston Tea Party of the internet revolution. This may very well be a seminal event in the history of the web, where the collective will of a user base exercised its muscle and gave the Man the finger.

  • RustyS

    “The crowdwisdom went wild.”

    That line alone was enough to get me to finally register with TypeKey to say – BRAVO!

    It wasn’t until Kevin Rose chimed in that the crowd was assuaged. Which leads to a question I’ve long pondered:

    If Steve Jobs and Kevin Rose got into a fight, which god would Mac people pull for? ;)

  • http://searchengineland.com Danny Sullivan

    Hey Seth, I did say my “non-legal” eyes!

    Look, you emailed that DeCSS is a computer program, and that — I gather — a court decided that a program is “technology” according to the law. Sure, I can roll with that.

    But writing about something within the code — writing about a number? Just saying something like “this is a key used in encypting HD-DVDs” is not, ot me, providing a technology or a service or a device or a component.

    Chilling Effects touches on this here:

    The tension between the DMCA and the First Amendment is at the heart of several ongoing lawsuits. [Felten v. RIAA; Universal v. Corley] The mere posting of a link to a computer program that can be used to circumvent technical protection measures was held to be a violation of the DMCA. [Universal v. Corley (2d Ciruit cite)] The Recording Industry Association of America used the threat of a DMCA action to silence a professor whose research paper discussed circumvention of a technical protection measure. The professor subsequently mounted a legal challenge to the DMCA on First Amendment grounds and presented his paper. While courts in both of these cases have found in favor of the copyright industries, these cases are being appealed and the state of the law is yet to be determined.

    Both cases have yet to go through the entire appeals process, so we really don’t know. What I suspect is that some common sense is going to prevail over the copyright madness. I can’t publish a number? Please. I don’t care if the number was secretly hidden in code or not. The number is out, and it’s in the public domain for fair commentary.

    I can speak the number to others, right? I could sing about it; I could sing to a live audience if I wanted to. There’s an entire difference between commenting on something and publishing instructions.

  • http://sethf.com/ Seth Finkelstein

    Just to be clear – no offense intended. But having slogged through this for so long, at such a deep level, it’s more a reaction of “Oh no, here we go again!”

    Did you read my paper? I discuss the argument you make in detail, with code examples.

    Regarding: “There’s an entire difference between commenting on something and publishing instructions.”

    Here’s the key passage about that … Brr …

    “During the trial, Professor Touretzky of Carnegie Mellon University, as noted above, convincingly demonstrated that computer source and object code convey the same ideas as various other modes of expression, including spoken language descriptions of the algorithm embodied in the code. … He drew from this the conclusion that the preliminary injunction irrationally distinguished between the code, which was enjoined, and other modes of expression that convey the same idea, which were not, id., although of course he had no reason to be aware that the injunction drew that line only because that was the limit of the relief plaintiffs sought. With commendable candor, he readily admitted that the implication of his view that the spoken language and computer code versions were substantially similar was not necessarily that the preliminary injunction was too broad; rather, the logic of his position was that it was either too broad or too narrow. Id. at 1070-71. Once again, the question of a substantially broader injunction need not be addressed here, as plaintiffs have not sought broader relief.”

  • http://legalminds.lp.findlaw.com/list/cyberia-l/msg32701.html Seth Finkelstein

    See EFF’s post on the subject now:

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

  • badcop666

    Assumption: it is good for everyone if all inventions are tested adn improved in the public domain.
    Assumption: what is good for everyone is good.
    Assumption: legislation, governments, baddies limiting or preventing activities which are good for everyone are BAD.

    These are simple logical truths as far as human society is concerned.

    The media industry *believes* that it is hemorrhaging from the ‘bottom line’ due to those nasty phenomena *freedom* and *the internet*.

    Human endeavour throughout history can be viewed as being divided into three groups :- those intent on carrying humanity forward towards intellectual and physical freedom, those intent on holding human society back for cynical individual gain, and those who simply suffer whatever the outcome is – ignorant of their capacity for pursuing of their best interests.

    Even right-wing idealogues *like* to be able to claim that pro-capitalist idealogy will take society forward to a golden age of freedom.

    By this logic then, circumventing their security measures is good.

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