The First Amendment vs. Patents in Web 2.0

May 3, 2007 — -- It's what you might call "Digg-ing their own grave." This week saw what is being characterized in the tech community as the first real "cyber-riot." And like real riots in the real world, Tuesday's explosion on Digg.com over the release of copyright protection codes for HD-DVDs had all of the usual elements of irrationality, illegality, false bravado and cowardice. And, like many such events, it exposed some interesting, and perhaps dangerous, fault lines in the Web world.

In case you don't know, Digg.com is a hugely popular Web site, mostly for young people, in which users post news stories from a vast array of sources, and their brethren either vote to keep them on the site or remove them. Stories that stay on the site move up and down the queue based upon reader interest.

That's the simple explanation, but as with all Web 2.0 community sites, it has quickly grown much more complicated than that in the last year. For example, Digg was originally focused upon science and tech stories, but has grown to include everything from entertainment to politics. And that in turn has brought with it a whole host of problems. For example, there are reports of companies and politicians buying their stories onto Digg by secretly paying for votes.

Worse, users have learned to use the "bury" feature, originally designed to get rid of spam postings, to crush stories with political perspectives (usually conservative) that don't match their own. The most notable victim of this kind of burying is one of the blogosphere's most popular sites, Little Green Footballs.

But the biggest problem with Digg is not the business itself, which is an impressive creation, but its community. One of the things we're learning about the Web 2.0 world is that all communities aren't alike; when you let millions of anonymous users design your product, you also let them determine your fate. And Digg has put itself in the hands of an army of postadolescents with too much education and too much free time, the age cohort that gets its news from "The Colbert Report" and holds the anarchistic view that all information should be, in fact, "wants to be," free.

Nothing wrong with that. Indeed, been there, done that. But now, in my gray-haired middle-age I've come to realize that if you are going to create a venue for children to play, someone has to be the grown-up. And that is where Digg blew it.

The Secret Code

For those of you who haven't been tracking the story, it went like this: Two days ago someone anonymously posted on Digg the secret code numbers (more precisely, thirteen combinations of letters and numbers) that unlocked the copy protection on HD-DVDs. As Pajamas Media noted, "To the movie industry it is a number worth untold millions of dollars if people don't know it, and one that could cost the industry untold millions of dollars if people do know it."

Within minutes, the string of numbers began proliferating across Digg, as Diggers realized that they could destroy the barriers put up by the HD-DVD consortium to stop mass copying and sharing of its product. As copy protection is widely hated, and seen as a way for big business to gouge individuals, this blow against the suits was roundly cheered.

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.

Right now, the fate of Digg is in the hands of the HD-DVD consortium -- the very people the Diggers tried to destroy. And it will very likely return the favor. I see big civil suits in Digg's future (and likely its demise) as well as in Rose's, who was actually dumb enough to post that note with his name on it.

As for Diggers, like self-obsessed post-adolescents everywhere, they are justifying their deed as an act of liberation, arguing that copy protection is evil, and -- applying the same defense corporate crooks used 20 years ago with gullible juries -- that they really weren't stealing anything more than a bunch of numbers.

The great Web satirist Iowahawk has already punctured that argument by posting Kevin Rose's home address (after all, it's only numbers) and suggesting that every Digg user head over to his house for a giant party. So I'll make the more sober argument.

It is this: all information is not equal in value. Some of it was created with considerable investment in time and money that needs to be paid back. Other information is the product of creative minds that deserve to be rewarded for their contributions to humanity. And still more is vitally important to the ongoing employment of thousands of people and the families they support.

How appropriate that this scandal occurred on May Day, because only a utopian fantasist would argue that all information should be free. It was Abraham Lincoln who said that America's two greatest contributions to mankind were the Declaration of Independence and U.S. Patent (i.e., intellectual property) law. And while I empathize with the frustration of folks who find themselves impeded from the full use of the latest technologies, those morons who want to destroy private property (and that includes trade secrets) put at risk the very future of innovation itself -- not to mention that great creator of human freedom, entrepreneurship.

Can we expect the children of Digg to understand this? No, but they will in time. But what we can expect is that individuals in positions of responsibility -- especially founders/CEOs -- get it.

Tad's Tab: The latest from the teen tech trenches, by Malone's 15-year-old son, Tad Malone:

Wasn't the Web supposed to improve productivity? Not anymore. Not when you click on a Web site and the screen instantly fills with distracting advertising windows and banners. Now a cool new app, called Clutter Cloak (http://teleskiving.wordpress.com/clutter-cloak/ ), lets you focus on one window at a time as it blacks out everything on your screen except what is under your mouse pointer.

This work is the opinion of the columnist and in no way reflects the opinion of ABC News.

Michael S. Malone, once called the Boswell of Silicon Valley, is one of the nation's best-known technology writers. He has covered Silicon Valley and high-tech for more than 25 years, beginning with the San Jose Mercury News, as the nation's first daily high-tech reporter. His articles and editorials have appeared in such publications as The Wall Street Journal, the Economist and Fortune, and for two years he was a columnist for The New York Times. He was editor of Forbes ASAP, the world's largest-circulation business-tech magazine, at the height of the dot-com boom. Malone is best-known as the author or co-author of a dozen books, notably the best-selling "Virtual Corporation." Malone has also hosted three public television interview series, and most recently co-produced the celebrated PBS miniseries on social entrepreneurs, "The New Heroes." He has been the ABCNEWS.com "Silicon Insider" columnist since 2000.