Notes About the Digg/HD-DVD Controversy

First off, as always, welcome to all new users from Digg. I’m glad to see you here and I hope that you stick around for a bit.

On that note, it has been a crazy 24 hours for Digg and for myself. It appears that, without meaning to, I’ve been dragged into a controversy that is outside of my usual scope. Many are trying to connect yesterday’s article about the DMCA policies of various social news sites to the HD-DVD controversy on Digg.

That was never my intention and such connections are, unfortunately, very flawed.

The article I wrote was largely finished before the HD-DVD scandal broke out and was posted before I was even aware of it. It was intended as a follow up to a previous article about duplicate content on social news sites.

With that being said, there are several problems with connecting my article to the HD-DVD controversy.

  1. Different Sections of the DMCA: The article I wrote dealt with the notice and take down provisions of the DMCA (Title 17, Section 512). The DMCA issue created by the key is in the anti-circumvention clause (Title 17, Section 1201). They are related only in that they were both passed in the same law.
  2. No DMCA Notice was Filed: Though it is unclear who sent the notice, it is clear that it was not a DMCA notice, but rather, a cease and desist letter. A DMCA notice would not have been appropriate in this case as the key in question is almost certainly uncopyrightable and, thus, could not legally be the subject of a DMCA notice. Note: It is possible that Digg is referring to a DMCA notice as a cease and desist letter, but they are two very different things and I feel certain that Digg knows the difference between them.
  3. Nothing to do With DMCA Policy: A DMCA policy deals with designating an agent, receiving DMCA notices and acting upon them. Since no DMCA notice was sent, this has nothing to do with their DMCA policy and doesn’t reflect on their process for handling such complaints. Furthermore, the DMCA only requires sites to ban repeat infringers, meaning that it is unlikely that someone would be banned under a DMCA policy for merely “typing a number“. Digg’s choices were almost certainly made in response to legal threats made toward the company itself, not to DMCA complaints.

The confusion is easy to understand. Since both the anti-circumvention clause and the notice and takedown provisions were both built into the DMCA, which contained several other parts as well, it’s easy to look at a DMCA policy and mistake it as applying in this case. However, that simply is not what happened.

By all accounts, this was a potential DMCA infraction dealt with via a traditional cease and desist letter. Digg’s handling of that cease and desist will remain controversial for a long time to come, but it is not a reflection on its policy as it pertains to DMCA notices.

That remains to be tested, though at least one commenter to my article had some interesting insight on that.

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