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

About The Author: Danny Sullivan 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. See more articles by Danny Sullivan

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