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Followup on digg.com, AACS, and "laws for bloggers"

By Kristopher A. Nelson in

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In an interesting article entitled “Digg This?: What Laws Must We Obey?” at “The Faculty Blog” from the University of Chicago, a law professor not intimately involved with the DMCA and Web 2.0 writes:

As to law, as Digg‘s attorneys undoubtedly told it yesterday, the leading decision addressing the legitimacy of linking to decryption tools is Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2nd Cir. 2001). That case deals with the prior iteration of this situation—the ordinary DVD—and the program for decrypting it, DeCSS. In that case, the Second Circuit validated an anti-linking injunction (“under the circumstances amply shown by the record, the injunction’s linking prohibition validly regulates Appellants’ opportunity instantly to enable anyone anywhere to gain unauthorized access to copyrighted movies on DVDs”).

The author portrays Digg‘s response as “a business decision: it can litigate tomorrow but it was going to lose customers today. I doubt that it made a decision about the need for civil disobedience.” He continues, “I wouldn’t think that not being able to play an encrypted high-definition DVD on your platform of choice would fall into that category [of laws necessitating civil disobedience].”

A commentator named Ed Felten responds to this view:

I’m disappointed at the narrow view of this issue you’ve taken. This is about more than “annoyance” at not being able to play HD-DVDs. In fact, I guarantee that many of the people that posted and “dugg” the offending stories have no intention of ever using the key to unlock an HD-DVD.

They participate to protest—as they have for years now—anti-circumvention provisions of the DMCA. This isn’t about HD-DVD. It’s about free speech and fair use.

I think this sums up a part of the divide between those who may disagree with the DMCA, but who do not see the extent of the problems envisioned by the EFF and those many, many Digg readers who protested what they viewed as censorship.