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Digg blowout: whiney kids or something more?

You may have heard about the huge commotion over at Digg a few days ago.  People have termed it online "civil disobedience" and the first "digital Boston Tea Party."  But mostly people have been calling the Digg readers "little boys."  In fact, the group making that charge the loudest is Digg's own userbase.

And after reading Fred von Lohmann's overview of legalities of the issue over at EFF, you might wonder if these "boys" at Digg have any idea at all what a legal mess they're getting into.  If the law is not on their side, what in the world were they thinking?

Personally, while I'm sure a lot of juveniles were indeed acting their age, I'm not certain that's the full story.  So I would like to submit a counterclaim.

The one-sided bargain

I remember making mix tapes 20 years ago and feeling quite confident that I was free to do it.  I recall taking classes on government & law and feeling that I was in a country that balanced my rights and the rights of others fairly well.  Nowadays, I'm often not even sure why some laws get to step on the toes of other laws, and I certainly wouldn't say the balance is still fair.

Consider this.  The US Constitution gives citizens the right to reclaim copyrighted works – forcing them into the Public Domain after a "limited time."  Unfortunately, companies in the USA have managed to drag out the "limited times" way past human lifespans now, which rather upsets the fairness of the agreement that people have with content-producers.  Because the companies haven't operated in good faith, it is increasingly difficult and hypocritical to ask citizens to act in good faith.

And because of these massive extensions, no living human being in the United States can recall the benefits of a Public Domain first hand.  It is left to researchers to piece together what the advantages were of having many companies and individuals freely creating derivative works, high quality repackagings, re-imaginings, and so on.

So a few whiners want back their Public Domain.  Is that all?

No.  Take a look at sections 107, 108, and 117 of Chapter 1, Title 17 of the US Code.  It codifies "fair use" in the USA to include making backups, time shifting (copying a legally obtained show with the intention of viewing it later), samples for critique, parody, and a few other things.  Keep that in mind the next time someone tells you that a company gets to dictate what you can and cannot do with their content.

In addition, in the Betamax case, the court upheld that copying for time shifting or even archival purposes (backups) was legal.

Lastly, numbers and other factual bits of data cannot be copyrighted.  Now this where it gets a bit hairy.  You see, a lot of companies pushed to change that, but they lost.  Undaunted, they tackled the problem from a different angle, getting the DMCA law enacted in 1998.  It doesn't modify copyright, but it layers on a new rule which stipulates that DRM cannot legally be circumvented or cracked.  Suddenly, they started winning court cases again.

OK, there are some laws about it.  So what?

You can start to see the conflict.  Some people look at the "secret" HD-DVD key and say "it's just a bunch of random numbers and letters, the law says you can't copyright that!"  Meanwhile, others look at the HD-DVD key and say, "it's part of the legally-protected DRM, censor it!"

Or consider what happens when Title 17 butts heads with the DMCA: it is illegal to circumvent DRM, but you must circumvent DRM if you are going to make your still-legally-allowed backup.  So how does that work?  And if the answer is "it doesn't, deal with it" then you have be ready for people to say, "well that's broken."  You can see the frustration building as normal people try to reconcile these things, especially when they are not aware of the issues at any level deeper than a gut sense of right & wrong.

All of this led to the undercurrent that caused people to charge forward with civil disobedience over at Digg.  People feel disenfranchised.  Even if they don't all understand the law, they understand that it sucks that they cannot back up their media collection without being criminalized.  Perhaps a few might even take issue with being told that they are breaking the law if they watch their legally purchased videos on their legally purchased but officially unsupported Linux computers.

By using DRM, these companies have done an end-run around the very laws and protections that formed some of our basic freedoms.  And DRM is just the tip of a very big iceberg.  Congress has passed multiple extensions to copyright protection, effectively starving the Public Domain.  And ever since the DMCA, rulings that shut out small players and lock content up with large corporations are increasing.  Some people are noticing.

So is it true that laws have changed?  Yes.  Is it true that what would have been legal in the past is illegal now?  Yes, it seems.  Is it true that civil disobedience on Digg could result in a legal battle that ends badly for everyone involved?  Yes.  But in pointing that out to all those Digg members, as if they just don't get it, we've actually stumbled onto their very point.  Something is broken in our society.  Something that wasn't broken before.

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