(CBS) 
In a case a little closer to the issue facing Digg, in 2000, MPAA successfully sued an online hacker magazine called 2600 after it offered readers access to a piece of software called DeCSS, which was designed to decrypt certain copy-protected DVDs.

Digg, however, is not distributing software or any other complete decryption tools per se, but is allowing its users to post a short string of code — numbers and letters — that can aid hackers who wish to break the DVD encryption. Because these are numbers and letters and not a complete software tool, it isn't clear whether publishing the code would be considered First Amendment-protected speech or distributing tools for breaking encryption.

Lohmann says that we're in muddy legal waters. "It's not just illegal to crack the encryption yourself without permission, it's also illegal to circulate or distribute or post software or other components that might be used to do that."

So, from a legal standpoint, the question is whether this string of code is a component of a decryption tool that is prohibited under the DCMA or a form of speech that is protected under the First Amendment.

In the digital world, said Lohmann, "The line between those things is very, very murky." He added that the licensing entity is claiming that this string of letters or numbers is essentially contraband. But Lohmann argues that "any law that prohibits you from uttering certain letters and numbers treads awfully close to the First Amendment."

The other issue is the propriety of provision of the DCMA that prohibits attempts to disable copy protection. Regardless of the free speech issue, that alone is highly controversial. "Many folks resent the copy protection and restriction technologies that are being built into HD-DVD and Blu-Ray discs" said Lohmann, "so once they started sending lawyer letters out to people, it really drew the ire of a very large number of Internet consumers."

And there's yet one more issue to consider. Digg is not a publishing company in the traditional sense, but, like MySpace, Facebook and other Web 2.0 social networking companies, it is a place where individuals can post pretty much whatever they want. Like YouTube, Digg does have responsibility to remove illegal material including copyrighted material that's posted without permission. But in this case, the offending material isn't copyrighted, even thought it can be used as a component in a tool designed to make illegal copies of copyrighted material.

Whew, we all know that technology can be confusing but law, in the era of Web 2.0, can be baffling, even for experts like Fred Von Lohmann.

---

A syndicated technology columnist for over two decades, Larry Magid serves as on air Technology Analyst for CBS Radio News. His technology reports can be heard several times a week on the CBS Radio Network. Magid is the author of several books including "The Little PC Book."

By Larry Magid
© MMVII, CBS Interactive Inc. All Rights Reserved.

Back To Top