Digg’s (Potential) Legal Woes

Cyberlaw Microsoft & Google Tech News

In light of the recent hoopla, could Digg die?

After trying to keep an HD DVD crack from being linked on
its site, Digg was subjected to an onslaught of users resubmitting the code
faster than the posts could be deleted. Eventually, Digg decided to stop trying
to censor the submissions.

Digg founder Kevin Rose has hinted at the possibility of
Digg’s being sued, and possibly even shut down. Could this happen?

Yes.

The case is similar in some ways to the YouTube lawsuit.
A website that hosts illegal material posted by users is being sued by the
copyright owners. Digg’s situation is a little different, though.
Unfortunately, Digg’s case is probably weaker.

Google in the YouTube case is relying for its defense in
large part on a section of the Copyright Act that provides a safe harbor for web
hosts with copyright-infringing material if, stated briefly, the host doesn’t
know the material is infringing, it doesn’t gain financially directly from the
infringement, and it removes or blocks access to the material once it is
notified of the infringement.

If Digg is sued, however, it would probably be on slightly
different grounds: trafficking in technology designed to circumvent
technologies that restrict access to copyright work under section 1201(a) of
the Digital Millennium Copyright Act (DMCA). Recent judicial decisions suggest
that even providing links to circumvention technology may violate the DMCA. Strictly
speaking, this is not a copyright infringement issue, which means the safe
harbor provision YouTube relies on is probably not available.

In short, Digg may be in big trouble. Movie studios are aggressively
litigious and would have a strong case. At least one person thinks Digg might
be able to win, but I’m not so sure. The law is clearly against Digg. To
prevail, it would probably have to be on some other grounds. The DMCA
provisions might be held unconstitutional (good luck!), or perhaps Digg could
argue that its users, not Digg itelf, are responsible for the posting and that
the website made a good-faith effort to remove the material.

*Update* Whatever ends up happening, Digg is getting some good press in the here and now. Check out the latest from the New York Times and BusinessWeek.

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