Digg works by ranking news stories on its site according to
readers' votes and found many of its leading stories this week
contained a secret code which unlocks the anti-piracy systems of
high definition DVDs.
The site received cease and desist letters from entertainment
companies that use the system to protect their copyrighted
material, and under the threat of legal action deleted any stories
that gave out the 32-character code from the site.
Lawyers for trade group the Advanced Access Content System
Licensing Administrator (AACS) claimed that the posting of the code
violated its rights under the Digital Millennium Copyright Act
(DCMA).
A massive user backlash prompted the firm to allow the stories
to be posted in a U-turn that could open Digg up to legal
action.
"You’d rather see Digg go down fighting than bow down to a
bigger company,” said Kevin Rose, Digg’s founder, in his blog. “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.”
Digg chief executive Jay Adelson said in an interview with CNN
that he accepted that the legal consequences of that U-turn could
spell the end for the company. "We understand that it could lead to
a big lawsuit," he said. "We understand that this could be end of
Digg. Do I believe that risk is very high? I really don’t know. The
information is in the public domain, it has been for quite a
while."
Fred von Lohman, an attorney at the Electronic Frontier
Foundation, said in his blog that sites which carry the code or
links to it are unlikely to be able to use a traditional defence of
'safe harbor'.
"While no court has ruled on the issue, AACS will almost
certainly argue that the DMCA safe harbors do not protect online
service providers who host or link to the key," he said. "The DMCA
safe harbors apply to liabilities arising from 'infringement of
copyright.' Several courts have suggested that trafficking in
circumvention tools is not 'copyright infringement,' but a separate
violation of a 'para-copyright' provision."
"The AACS takedown letter is not claiming that the key is
copyrightable, but rather that it is (or is a component of) a
circumvention technology," said von Lohman. "The DMCA does not
require that a circumvention technology be, itself, copyrightable
to enjoy protection."
