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.