The ABA Journal reported on the mass of postings on Digg.com last month of a 32 letter and number series which can be used to circumvent DRM in blu-ray and high-def. DVDs (you’ll need some software too) (this was posted elsewhere, I like the http://09-f9-(etc).com/ URL and the ThinkGeek t-shirt) A user would post, they would receive a cease-and-desist from the Advanced Access Content System (a trade group of entertainment companies), the administrators of Digg would remove the offending content, and then more users would post the code in response. This angered a number of power users on the system, and finally the administrators gave up. So, what is Digg’s liability: does the code fall under copyright (probably not), is this covered by the DMCA (likely so), did Digg give up their DMCA safe-harbor protections by not removing the content (ummm, yes and no), and does 47 USC § 230 give Digg any protection (it depends). Thank the gods, this is why I love the law.
Here is the ABA Journal story: It’s No Secret: Code Stirs Up a Web Storm. Eric Goldman, who is quickly becoming my favorite IP professor (too bad I don’t want to do an LLM at Santa Clara), also gives some analysis in the article.
Under the federal Digital Millennium Copyright Act, it’s unlawful to circumvent technology designed to protect copyrighted work. But the statute also provides a safe harbor for Web site operators in section 512 (c), when users make questionable posts.
“What’s unclear is whether the cease-and-desist notice was sent under 512 or some other rubric we don’t know about, and whether Digg.com, by refusing to honor the notice, lost its eligibility to be protected by safe harbors,” says Eric Goldman, an assistant professor at the Santa Clara University School of Law and director of the school’s High Tech Law Institute.
He also mentions another federal statute, passed in 1996, that provides expansive safe harbor from liability for third-party content. The statute, 47 USC § 230, holds that—providing the post in question doesn’t involve intellectual property—online providers can respond to a complaint however it wants.
So if the secret code is not intellectual property, Goldman says, Digg.com has no liability. But he stresses that continuing to allow the code posts is risky.