Op-Ed

Op-Ed
The Digg Key Party

Russ Pitts | 7 May 2007 18:00
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Whatever else can be said about Digg, the Web 2.0 behemoth drawing in millions of page hits worth of ad revenue each month (using, essentially, other people's content), you can't say it hasn't been true to its promise that the direction of Digg will be up to the readers of Digg. Unfortunately it's that very thing, the essence of so-called crowdsourcing, which will lead to its downfall.

Last week Digg was (again) headline news thanks not to estimates of its founder's worth, but to the proliferation of a code used to decrypt (and therefore hack) HD-DVD data. The code was discovered by a user in February of this year, but it only recently started to make the rounds of news aggregators like Digg, after the organization responsible for administrating the copyright protection on the HD-DVD standard, the Advanced Access Content System Licensing Administrator (AACS LA), began sending cease and desist orders to sites posting the key. This, of course, caused an internet uproar in the form of rampant linking (by users) to stories containing the code.

At first Digg responded by lawfully removing references to the legally protected code and banning users who insisted on posting it. Digg users did not appreciate this and continued to propagate the code, often using it as the headline for their Diggs. At one point, variations of the same story filled the entire front page of Digg, and in an effort to stem the tide, Digg temporarily shut down their service and began a mass banning campaign. And that's when things got squirrelly.

Digg had a change of heart, and shortly after resuming service, Digg founder Kevin Rose, in a surprise announcement, reversed this policy and stated that Digg would no longer be complying with the AACS LA's orders, against their attorneys' advice. The mob won, but don't think for a second it will end there.

The AACS LA has pulled the compromised key string and supplied a new, reconstituted encryption key to the hardware vendors it serves. They've also hinted they will take legal action.

"We respect free speech." The AACS LA said to the BBC. "But a line is crossed when we start seeing keys being distributed and tools for circumvention. You step outside of the realm of protected free speech then."

***

Before we go any further into this debate, it's important to remember where this concept of free speech came from, and how it came to be such an important buzzword. A little over 200 years ago, the idea of protected speech was a preposterous idea, whispered by revolutionaries in back rooms and written about by land-owning scholars living under the oppressive rule of a foreign power. In 1773 these revolutionaries decided to take action against what they thought was an unfair, unjust law, enacting a heavy tax on a widely consumed commodity: tea. Since this was before the internet, the best they could do to protest anonymously was to wear costumes. So they dressed up like Indians, and, instead of stealing it as might happen today, they threw tons of the tyrannically taxed tea into Boston Harbor. This was to signify their unhappiness with a law that was passed over which they had no vote. "No taxation without representation" was their rallying cry, and this sentiment, and their willingness to take up arms and fight over it, led to the creation of the rights and protections you enjoy to this day.

The laws passed in the United Stated Congress are voted on by people you have the power to hire and fire, thanks in no small part to these masked avengers and their pekoe pitching party. Whether you take advantage of this right is your business, but the founding fathers saw to it that we (the people) had the privilege to effect change in our government without going to the lengths they had to go to. If we don't like the laws that are passed, we get the chance to replace the bums that enacted them, no costumes required. Pretty sweet.

***

Around the turn of the century, the internet community decided to have a tea party of their own with a computer program called Napster. Napster was a so-called file sharing program, offered for free, which allowed users anywhere on the internet to find and download songs and other files on any other machine also using Napster. This made it possible to download practically every song ever recorded, provided someone had already ripped it to his hard drive. It was, so the media outlets at the time suggested, a digital media revolution and the only problem was that it was illegal.

Napster violated the newly-enacted Digital Millenium Copyright Act (DMCA), a law that makes it illegal to do quite a number of things, among them, hacking into the encryption of copyrighted material and distributing said material online. The Recording Industry Association of America (RIAA) and a few high-profile artists came down hard on this process of "file sharing," condemning Napster and promising legal action. But they had a problem: punishing every single one of the people who violated the DMCA by "stealing" music using Napster wasn't practical, or desirable. So what to do? Sue Napster, of course.

Napster was a small company with only 50 or so employees, but in 2002, following the forced Chapter 11 liquidation of all of its assets, all 50 or so of these people were laid off and forced to seek other employment. The lucky and the smart probably got out early, but those who were neither more than likely had a few sleepless nights at least, wondering where their next meal would come from.

The jury is still out over who got hurt during all that (aside from Napster), and how much. It's inarguable that record sales started declining during that time, and have continued to plummet. You can call this due to "crappy music" if you want, and it's questionable whether free downloads make people more or less likely to purchase music, but the basic economic statement that one tends not to buy a cow when one gets milk for free is an inescapable truth.

What's also inescapable is that the collapse of a company of any size is an economic event with ripples that spread out from the point of origin in ever-widening circles, but for you, the hundreds of thousands of users who actually broke the law by distributing copyrighted music, the impact is minimal. In fact, it would be fair to say that you'll feel very few of those ripples.

Unless, of course, you happen to be one of the few end-users selected for prosecution, or work for the affected company, or know someone who does, or purchase the products made more expensive as a result of increased R&D expenditures to revamp security measures, or pay taxes that will contribute to (in no particular order) unemployment benefits for dispossessed workers, prosecution efforts, legislative revamps and incarceration of those who break the law of the land ...

***

Here's what's going to go down with Digg: The AACS LA will not sit idly by as their credibility is run through the mud, and since they can't realistically file lawsuits against every single person copying and pasting the code on Digg or elsewhere (the AACS LA calls this a "resource intensive exercise"), they will instead turn to the one entity they can sue: Digg. What happens then is anyone's guess, but if my paychecks were embossed with the Digg logo, I'd very worried right now.

Kevin Rose, founder of Digg, has this to say about his company's future:

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 think Kevin's comments are brave, and I respect him for having the balls to reverse his company's position and go against his lawyers' advice. I also think it's exciting and fun that so many people are uniting to "stick it" to The Man, but at the end of the day it will be neither The Man, nor the revolutionaries doing the sticking who will suffer for their actions; it will be Kevin Rose and the employees of Digg.

What's truly disappointing in all of this is that, as brave a stand as it was, Rose really had no choice. The code had propagated so far and wide on his service that to completely rid Digg of it, he'd have had to ban a significant enough majority of users as to make the site no longer viable. It was, in true Web 2.0 fashion, your decision to challenge the authority of the AACS LA and the validity of the DMCA, but not, as is your constitutional right, by voting and/or writing to Congress, but by throwing the equivalent of an internet temper tantrum; The Boston Tea Party as reenacted by school children pouting over a shortened recess.

"We will take whatever action is appropriate," says the AACS LA. "We hope the public respects our position and complies with applicable laws."

The stage is now set (again) for a monumental fight over the DMCA and the First Amendment rights of American citizens. Unfortunately the First Amendment does not cover violations of copyright, as is clearly stated in the DMCA, and as precedent has shown, particularly in the case of Napster. You may have won this battle, and secured your right to use the Digg service to voice your discontent with copyright law, unfortunately you will lose the war. Mainly because you're wrong, but also because Digg, in refusing to comply with the AACS LA, doesn't have a leg to stand on, thanks to you.

The Digg organization has done some amazing things, and will continue to do amazing things, but proving the theory of tragedy of the commons to their own detriment will probably be remembered as their crowning achievement. Unfortunately for Digg, I'm guessing you'll be too busy looking for the next site to frequent, or downloading hacked HD-DVDs using an anonymous user account to help them wage this war you've started, which is too bad. When people are willing to fight for what they believe in, it's actually a beautiful thing. Unfortunately, in the anonymous, user-driven world of Web 2.0, it's not about taxation, or representation, it's about greed - yours.

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