The First Amendment vs. Patents in Web 2.0


As is the case with the Web, the revolt quickly began to spread to other sites, notably Google, quickly becoming one of the most active links in the history of the blogosphere. Most of the big sites responded as you might expect: both Digg and Google, having received a cease and desist order from the consortium, quickly moved to block all postings of the secret code. At Digg, the hard-core Diggers howled in betrayal. Some even had the nerve -- especially in light of their consistent censorship of political viewpoints different from their own -- to wrap themselves in the mantle of the First Amendment. Within a few hours, the number of postings complaining about Digg's censorship approached that of the code-breakers.

And then the most extraordinary thing happened: at 9 p.m, Tuesday night, Digg founder Kevin Rose posted a message (headlined with the secret code!) saying the following:

"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."

In other words, Digg was willing to block porn and hate sites, but was perfectly willing to violate trade secrets if its users said so.

It was a breathtaking abrogation of responsibility by a person in a position of authority. If you sign up to be sheriff, and are rewarded handsomely for doing so, then your job when the howling mob shows up outside the jail is defend the prisoner under attack, even if you despise him. At the very least, you run away and accept the shame of your cowardice. But the one thing you don't ever do is join the mob knocking down the jailhouse door.

And that is exactly what Kevin Rose did. Rather than maturely endure the momentary anger of his community, he instead caved in the most craven manner possible. With a certain justice, all that this gutless move managed to do was earn Rose even more contempt for being two-faced and spineless.

Not All Information Is Equal

And it may soon earn him even more. It is one thing for anonymous posters to violate the law and broadcast trade secrets to the general public. The venue on which this lawlessness occurred can always claim -- as Google and others will do -- that they made a good faith effort to stop the criminal activity. But Kevin Rose and Digg won't have that defense -- not when they abandoned any attempt to curb the behavior … and, in short order, actively embraced it.

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