The news-sharing Web site faces a painful choice: allow user content that courts legal woes, or risk losing users—and content
Chester Millisock was angry and he had friends. Digg, a community news-sharing site, had banned the 24-year-old programmer for posting a not-so-secret code enabling tech-savvy users to illegally copy high-definition DVDs. Rather than accept banishment, Millisock re-registered and voted for the offending post to appear on Digg where it would be seen by hundreds of thousands, if not millions, of Digg users. Tens of thousands of other Digg members did the same, arguing that the right to post the code was covered under freedom of speech. Soon, the code covered Digg's homepage. "If the majority decides something is true, then it's the truth," says Millisock. His rationale: "Majority rule."
At 9 p.m. Pacific time, May 1, Digg joined that majority. Site founder and chief architect Kevin Rose wrote in a blog post that Digg's staff would allow the stories to post and deal with whatever legal ramifications would follow. "If we lose, then what the hell, at least we died trying," wrote Rose. In a show of solidarity with the users, he included the offending numbers in his message.
Digg CEO Jay Adelson says that about-face was against the advice of Digg's lawyers, who fear it could embroil the company in a costly, and potentially losing, legal battle with HD DVD's backers. He also insists that Digg's senior managers never wanted to follow the lawyers' advice in the first place. "Not only are we aligned with our users in this, but we cannot suppress such a voice," says Adelson. "The people have the power in this new medium."
"Power to the people" is a popular rallying cry of young Web companies whose businesses are dependent on the communities their sites empower to create and share content. But it's also their prime problem. Try as they might to guide the wisdom of the crowds supplying their content—and viewing their advertising—they cannot ultimately control them. "This is the flip side of these companies whose strategy is building up a community of users and encouraging those users to see the company as leaders of the community rather than their bosses," says Edward Felten, professor of computer science and public affairs at Princeton University. "You can imagine a similar kind of thing happening in MySpace or YouTube or any of these places."
Already Google's (GOOG) YouTube has found itself in trouble for its users actions. The site's terms of service clearly state that users cannot upload content that they don't own the copyright to. Yet users continue to do this, and take-down notices continue to be filed. The company was sued by Viacom (VIA) as a result (see BusinessWeek.com, 3/14/07, "Viacom's Suit Won't Snuff Out YouTube").
Even if Digg disagreed with the users, Adelson says the company doesn't have a staff large enough to silence the majority. The site attracts 15 million unique users a month, by Digg's estimate. The company has around 18 employees. In fact, it relies on the majority to police itself by voting for the promotion or deletion of posted content and comments. Digg can, and will continue to, remove posts that violate Digg's terms of service, such as hate speech or pornography. But if the users really want something—such as the keys to copying cutting-edge DVDs—the users have the power to get it. That is, providing Digg doesn't simply shut itself down.
Digg's alliance with the users could prove devastating. About a month before Digg's change of heart, the company received a take-down notice alerting it to the posted code from the Advanced Access Content System Licensing Administration, the copyright protection group backed by such heavyweight tech and media companies as IBM (IBM), Intel (INTC), Microsoft (MSFT), and Disney (DIS). The code could be injected into a DVD player that would then decrypt the HD-DVD discs and allow them to be copied or used to write programs to strip the copy protections from the discs. As such, it was a "circumvention device" and illegal in the view of the AACS and the courts. The AACS declined to comment for this story through a spokesperson. A lawyer listed on the take-down notices for the AACS did not return phone calls.
The legal precedent barring the code was set in a 2000 case, Universal City Studios vs. Reimierds, and upheld on appeal. In that case, 2600 magazine, nicknamed The Hacker Quarterly, published a story in which it included a code that enabled the technically adept to crack DVD copyright protections. The motion picture studios sued for damages as well as an order preventing the publication of the code. They won. "I think that at this point if [Digg] just ignores take-down notices they will probably lose their business over it," says Cory Doctorow, a professor, author, and co-editor of Boing Boing, a blog devoted to culture, art, and digital rights.
Doctorow had a blog for his University of Southern California class, "Pwned: Everyone on campus is a copyright criminal," on which a student posted the code. He received a take-down notice months later and replaced the code with the take-down notice, which conveniently had the code in it. Doctorow believes Digg should also take this tack—preserving the information without "falling on their sword."
Dependent on the Community
Fred von Lohmann, an attorney with the Electronic Frontier Foundation, the firm which tried and lost the 2000 Universal City case, believes that even linking to the numbers at all may be considered a violation. "There is a possibility that you can be sued even if you have no idea it was there," says von Lohmann.
Of course, Digg may have no other choice but to fight for whatever its users want. Digg depends on their participation. If it angers enough of its core users, they may go somewhere else. That not only means no real audience to serve advertising to, it means no real content, period. No articles submitted. No Diggs. Nothing. It can hope to attract a community of like-minded users by advertising its terms of service, but it risks losing any community if it doesn't let the crowd influence—if not outright dictate—what those terms should be.
Despite having his initial account reinstated, Digg user Millisock is looking for another community site that gives its audience more power. "What users are after is a Web site where they can submit stories and just the users can decide what is important," says Millisock. "That is still the ideal."