Something interesting happened on Digg recently. Some users started publishing a decryption key for high definition DVDs on the site and the Digg team started removing these posts due to concerns that they would be sued for publishing this means to break copy protection which is illegal under US copyright legislation. The problem is, the community pushed back. According to TechCrunch:
To say what happened today on Digg was a ‘user revolt’ is an understatement. The Digg team deleted a story that linked to the decryption key for HD DVDs after receiving a take down demand and all hell broke loose. More stories appeared and were deleted, and users posting the stories were suspended.
That just got the Digg community fired up, and soon the entire Digg home page was filled with stories containing the decryption key. The users had taken control of the site, and unless Digg went into wholesale deletion mode and suspended a large portion of their users, there was absolutely nothing they could do to stop it.
Digg CEO Jay Adelson responded on the Digg blog earlier this afternoon but it was clear he did not yet understand the chaos that was coming. The post only added fuel to the fire. Just now, co-founder Kevin Rose posted yet again on the Digg blog, effectively capitulating to the mob’s demands: He says
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.
I wonder how this is going to pan out if Digg is sued to publishing the decryption key? The one thing that occurred to me is the safe harbour provision in the US Digital Millenium Copyright Act which provides a certain amount of protection where content under copyright is published to a site by its users provided the service provider concerned complies with certain requirements. We have a similar mechanism in our Electronic Communications and Transactions Act and in our law a service provider is protected from liability for copyright infringement provided certain conditions are fulfilled. These include the requirement that the service be automated and that the service provider respond to take down notices to remove the offending content.
In this case Digg was taking down the posts with the decryption key but the community pushed back and kept republishing the posts. They did it in such a way that Digg was virtually brought to its knees. So this raises an interesting point. Could Digg argue that they are incapable of controlling the flurry of posts with links to the decryption key and similarly incapable of complying with take down notices and therefore should not be held liable for the actions of its users? What happens when users take over the service and use it to infringe copyright?