Adam Feinsilver's Techlaw Tips - May 2007
Lawyers Get Pwned by Digg

Lawyers Are Out of Sync
Most lawyers don't know squat about technology, so it's no shocker that they can't figure out the geek counter-culture.  (Yes, it's fun to step out of my "lawyer" shoes and point the finger.)  After logging into Digg and finding the code for cracking HD-DVD copy protection splattered all over unrelated news stories, I knew that something screwy was afoot.  My first thought was "Cool! Digg's getting publicity."  A few seconds later, I was trying to figure out what the big deal was.  Apparently, Gary Gnu was right.  "No gnews" really is "good gnews."  

4 8 15 16 23 42-Wait...That's not It!
Let's do a quick recap of the story.  AACS (Advanced Access Content System) key for unlocking almost any current HD-DVD was posted on the Digg.com social news site by one of its million-plus registered users.  Digg initially complied with a demand letter from AACS requesting removal of the key from Digg.com.  In response, the Digg community posted thousands of messages throughout the site containing the key and flaming (lambasting) Kevin Rose, Digg's founder.  Rose and Digg CEO Jay Adelson decided to stand behind its members, allow the HD-DVD code posts, and accept the legal repercussions.  The circus left town and Digg has returned to "virtually" normal.

In theory, Digg was faced with a situation where they could either have wound up outgunned in a legal suit or simply removed the posts to the potentially infringing material.  Well, common lawyer-sense would tell you to take down the posts and avoid the legal fallout.  

A lawyer who actually understands the community would see the bigger picture.  Of course, it's easy to say what I would have suggested in hindsight...so I will.  Digg should have explained the foreseeable fallout to the AASC.  Even though the lawyers couldn't figure it out for themselves (there's no form letter covering this), the clients should have been able to see that leaving the issue alone would have avoided the outbreak.

Purely as a marketing move, reversing the censorship decision was brilliant.  In reality, I think the decision to reverse course was made to save the company (or at least its integrity).  In Digg's world, caving into AACS would go over as well as a skunk in a steakhouse.  The publicity was just a byproduct of a catch 22.  

TWIT, Wired, Boing-Biong, GeekBrief and the rest of the tech outlets were all over the story.  It's great tech fodder.  The big media outlets must have thought they were going to miss the boat...again.  Articles later turned up on the New York Times, Forbes, Money, Market Watch, and CNN websites.  The only glitch in the system was that there really wasn't any substance behind the story.  The code was on the Net months ago.

Legal Mumbo Jumbo
The Digg community posts rambled on about free speech.  Lawyers seem to feel that Digg is unlikely to succeed on a DMCA (Digital Millennium Copyright Act) lawsuit.  I disagree with both sides and see it as a trade secret issue.

All rights that come to mind have restrictions.  Free speech isn't omnipresent.  If you write a book, I can't get around copyright laws by posting the book on my website and claiming "free speech!"  Even if the First Amendment were relevant, a "fair use" defense would be tenuous at best.  The hexadecimals aren't newsworthy. 

The entertainment industry loves leaning on the DMCA in its ongoing efforts to avoid figuring out how to survive the digital age.  It's not applicable to the Digg story for two reasons.  First, Digg didn't give users a program (or "tool" in DMCA terms) for cracking DVDs as is the case in most relevant DMCA lawsuits.  Second, the 32-bit hexadecimal code can't be used on its own for cracking HD-DVDs.  Directions weren't even posted. (Even with a program, the directions, and the key, few of us, at this point, would take the time to rip a 9 GB disk just to save a few dollars.)  Someone on TWIT (the "This Week in Tech" podcast) commented that more people have the code than an HD-DVD player.

The code was nothing more than a trade secret.  If Digg allowed the distribution of a crack (an application to circumvent copy protection), then there would be a DMCA issue here.  The code is only a string of numbers and letters.  Once that string is out of the bag, it can't be put back in.  In other words, the code loses its protection.  It is no longer a "trade secret."  Since the code was posted around the Net back in February, Digg didn't expose a trade secret.

Lawyers Can't Compute
As someone who grew up on computers, it's kind of funny and pathetic at the same time to see lawyers fumble around with today's younger generation (what letter are we on?).  It seems like most lawyers either mentally withdrew from the tech community in law school or never were a part of it.  Then, they graduate, buy a Blackberry and suddenly are "733+" and capable of counseling businesses involved in emerging online technologies.  I just listened to a legal podcast with a tech lawyer.  She said that she is a "unique" computer user because she would look for a music video on-line instead of on TV.  That must be hard to do from her home in 1995 with her 56K modem.  Talk about being out of touch with the mainstream!  

In most cases, advising a client to remove a potentially infringing item from a website would be the right move.  Any good attorney wants to minimize the client's exposure to a lawsuit.  This isn't "most cases."

When the end users are tech-savvy teens and twenty-somethings and the product or problem involves music, video, videogames, social networking, blogging, pocasting, etc., the disconnected attorneys hide in "the law."  Well, how do expect that lawyer to know what to do when there's a breakout on Digg?  Sure, get out the big mallet and slam 'em with a nasty demand letter.  The legal system always works!  (This is starting to feel like a recap of my RIAA rant.)  Congratulations, you guys struck a hornet's nest.  

Knowing the law alone isn't good enough for the tech world.  When pop and tech culture is your business, make sure your lawyer speaks the language.

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Disclaimer: The advice given in the TechLaw column should not be considered legal advice. This newsletter only provides general educational information. You must never rely upon the advice given here. Your individual situation may not fit the generalizations discussed. Only your attorney can evaluate your individual situation and give you advice. Except as provided below, you may feel free to forward, distribute and copy the TechLaw column if you distribute and copy it without any changes and you include all headers and other identifying information. You may not copy it to a website.

Adam Feinsilver operates a Technology Law firm in Palm Beach, Florida. Practice areas include tech law, intellectual property, business law, and entertainment law.  Mr. Feinsilver also provides product marketing consultation services to tech industry clients.  He is also available to law firms as a legal consultant on technology-related legal matters.  Mr. Feinsilver can be contacted via e-mail at adam@feinsilver.com or by calling the firm, Adam S. Feinsilver, Attorney at Law, at (561) 790-3857.

Adam Feinsilver's Techlaw Tips may be duplicated and distributed in its entirety so long as no changes are made to the article, its headers or footers.  Publication or posting to a Web Site requires permission.

Copyright 2007 Adam S. Feinsilver