Digg Rebellion Shows That Crowd Is Law

Allowing the posting of the "processing key" for HD-DVD and Blu-ray video signals the rise of social computing as a countervailing force.
In late 1999, law professor Lawrence Lessig published a book called "Code Is Law," exploring how the technical architecture of the Internet -- the code -- would regulate the Internet, in conjunction with the legal system. His aim was to counter the notion that the Internet was somehow beyond control -- a view that emerged as the Internet came of age in the 1990s -- and to clarify the choices faced by the Internet community going forward.

Lessig revisited the issue in a follow-up book, Code 2.0. "We can build, or architect, or code cyberspace to protect values that we believe are fundamental," he wrote. "Or we can build, or architect, or code cyberspace to allow those values to disappear." Since then, countries like China, not to mention the companies that do business there and supply governments with technology to censorship and monitor, have demonstrated that the Internet and its users can be brought to heel, mostly.

But social computing -- blogging, commenting, messaging's movement beyond e-mail, and other group-oriented, collaborative systems -- is emerging as a countervailing force. When everyone is an individual publisher, they are vulnerable as individuals. But when they band together in groups, when they form communities, when they connect, they become powerful, both politically and economically.

This has always been the case. It is the reason that governments try to limit public assembly. Now, thanks to Web 2.0 and social networking technologies, the crowd has become self-aware and self-protective.

For Digg at least, crowd is law.

On Tuesday, Digg users rejected the community news site's effort to censor posts that revealed a 32-digit number, the "processing key" that can be used to open the digital lock protecting HD-DVD and Blu-ray video discs. Digg tried to remove posts containing the number in order to avoid liability for publishing information that could be used to facilitate copyright infringement.

The rebellion is rooted in longstanding contempt that many members of the online community have for digital rights management (DRM) technology. "What the revolt speaks to is the frustration of consumers' ability to control a property that they purchased," said Gregory Rutchik, founding attorney at the San Francisco-based Arts & Technology Law Group.

In dealing with this broad dislike for DRM and the state of copyright law, Digg faces the same problem that confronts YouTube: How do you deal with user-generated content that's really generated by someone else? In YouTube's case, filtering technology should eventually be able to identify infringing submissions. Digg, however, faces a much tougher problem due to the nature of the information in question: How do you censor a number?

The short answer is you don't. And that has implications for would-be rebels everywhere. It shows that given the right circumstances, systems of censorship can be overcome. Coordinated group efforts like this may well become the virtual equivalent of standing in front of a tank in Tiananmen Square. Others have likened it to the Boston Tea Party.

"It turns out that the 'government' of Digg's community gets its power from the consent of the governed," Princeton computer science professor Ed Felten wrote in a blog post about the uprising. "Users of other Web 2.0 sites will surely take note."

As far as the law is concerned, however, nothing has changed. And Digg, by openly throwing in the towel and siding with its users, may be inviting a lawsuit. It would be a difficult lawsuit to win because the courts have already ruled on a very similar case.

"It reminds me of the 2600 magazine case on the DeCSS code," said Rutchik. "In 2002, the Second Circuit Court of Appeals basically held that the magazine could be banned from publishing or linking to the DeCSS code."

The DeCSS code, like the processing key code that has been plastered all over the Net, served to decrypt encrypted video content, an act that violates of the Digital Millennium Copyright Act's anti-circumvention provision.

Rutchik observes that the Digg insurrection may prompt some reconsideration of copyright law. "It's through revolution that business and government often change," he said. "Plaintiff lawsuits made cars safer, they made pajamas fireproof. Revolt bought about the birth of this nation."

But as Rutchik sees it, flouting the law isn't the answer. "This is a capitalist economy," he explained. "And copyright owners are entitled to put up fences. They remind people that the yard of another can only be entered with permission. And boundaries in a capitalist society are necessary to incentivize creators."

The problem is that Hollywood's fence looks like shackles to many in the Internet community. And evidently this rather vocal group isn't into bondage.