Digg-ing its own grave?

The user-generated content finder Digg may well have just dug its own grave with a defiant message to Hollywood lawyers, posted by its founder on the site’s blog yesterday.

There is another very short crack out there for the High Definition DVD standard – much shorter that the infamous DeCSS crack released in 1999 – and the Movie Association is going all out again, threatening anyone that posts the 32-digit code with legal action. It told Digg that it expected it to remove any reference to the code, and so Digg complied, but then was hit by a tidal wave of complaints by its users, prompting Kevin Rose to write the following blog post:

Today was an insane day. And as the founder of Digg, I just wanted to post my thoughts…

In building and shaping the site I’ve always tried to stay as hands on as possible. We’ve always given site moderation (digging/burying) power to the community. Occasionally we step in to remove stories that violate our terms of use (eg. linking to pornography, illegal downloads, racial hate sites, etc.). So today was a difficult day for us. We had to decide whether to remove stories containing a single code based on a cease and desist declaration. We had to make a call, and in our desire to avoid a scenario where Digg would be interrupted or shut down, we decided to comply and remove the stories with the code.

But now, after seeing hundreds of stories and reading thousands of comments, you’ve made it clear. You’d rather see Digg go down fighting than bow down to a bigger company. We hear you, and effective immediately we won’t delete stories or comments containing the code and will deal with whatever the consequences might be.

If we lose, then what the hell, at least we died trying.

Digg on,

Kevin

You have to admire Kevin for standing up for what he thinks, but I very strongly suspect he has just made a big mistake based on beliefs that with a few years’ experience he will find don’t quite work in reality. My prediction: the movie industry lawyers will destroy Digg and the only good thing that will come out of it will be that the company makes its software open source.

First, look at the MPAA’s approach and success. It sues the hell out of anyone that is high-profile but which doesn’t have enough funds to stretch the case out or get the situation properly reviewed in the US courts (which would mean $5 million and around five years, going to the Appeals Court etc). This is a very effective tactic because it means the MPAA wins, it forms a weak sort of legal precedent and it scares the bejesus out of everyone else. The same approach took down Napster – yes, remember Napster? And despite dozens of creative ways of making the DeCSS code available, the MPAA was 100 percent effective in stopping the code from being readily available as a simple file.

The reality is that if you can’t type DeCSS into a search engine and download it straight-off, then 90 percent of the people that may have used the code, will never use it. No matter what way you look at it, this is incredibly effective legal pressure. It should also be noted that the MPAA managed this while failing to actually prosecute DVD Jon for DeCSS. It certainly made his life hell for several years, but ultimately the courts wouldn’t buy it. It didn’t matter in the end.

Scalp

So the MPAA will do the exact same thing again. When Napster was taken down, it stopped a threatened mass revolution of pirated music. When Digg is buried, it will take the wind out of the user-generated side of the Internet. Every other website will follow suit, and the MPAA gets what it wants – a very public scalp and as much containment of the code as it can reasonably expect to get.

There is a big difference this time however. The DeCSS code was relatively long. This latest bit of code is extremely short. And the shorter it is, the more ways there are to make the whole thing very easily and simply available – such as putting it in a one-minute song. The MPAA is really at the end of a losing battle with this one. Its tactics will work, it can kill Digg by throwing lawyers at the company, but if the MPAA doesn’t learn how to approach these matters differently, then next time this happens, they are going to be swamped.

I do think it’s a shame that Kevin Rose is throwing away a terrific site and company because he has mistakenly viewed users’ complaints as support. The fact is that the vast majority of Digg users will have continued to use Digg once all this had blown over in a month. And the other sad truth is that all those people that complained – and even the ones currently pledging unending support for the company – will melt into nothing if lawyers turn up at their house, or even if Digg puts out more than one call for funds to fight the legal battle.

Kevin should have kept schtum, he should have done what he could to remove the postings and then simply let the millions of Internet users out there bypass all the MPAA’s enforced controls (because the code itself is so short) on hundreds of thousands of other websites. What’s he’s done is give Hollywood a great big target to fire at. If Kevin has any sense, he will learn from Shawn Fanning and put Digg up for sale while all the publicity boosts its profile, so that a new boss can step in, cut a deal with the MPAA, and continue with Digg as is.

Still, good on him for having the balls.