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EFF and Dvorak Blame the Digg Revolt On Lawyers
enharmonix writes "A bit of an update on the recent Digg revolt over AACS. The NYTimes has taken notice and written quite a decent article that actually acknowledges that the take-down notices amount to censorship and documents instances of the infamous key appearing in purely expressive form. I was pleased to see the similarity to 2600 and deCSS was not lost on the Times either. More interesting is that the EFF's Fred von Lohmann blames the digg revolt on lawyers. And in an opinion piece, John Dvorak expands on that theme."
The real "Libtards" are the Libertarians!
They received a legally-unenforceable cease and desist letter, but never a DCMA takedown notice. This is key: they were under no legal obligation to do anything at any time. They received a threatening letter and over-reacted. They pulled any stories remotely related to the AACS key, including several that did not mention the number, but only commented on Digg's censorship of it. They also banned the people who submitted those stories -- something that has never been a requirement of the DCMA.
That's what I was protesting. I never expected Digg to do anything illegal or take the issue to court.
>That includes being able to yell "FIRE!" in a crowded theater. If you're not allowed to do that, then you do not truly have
>freedom of speech.
If the theatre happens to be on fire, then you will probably have the gratitude of the people within.
If the theatre happens to NOT be on fire, you may face consequences at the hands of those same people.
In no case was "yelling fire" illegal. However, intentionally causing a panic and creating a public nuisance, *is* illegal.
On the other hand, the allusion to yelling fire was meant to illustrate the basis for a doctrine that a compelling state interest existed that could justify the suppression of certain activities that would otherwise be protected by the First Amendment. In particular, "yelling fire" was an example used in a case that ruled it illegal to distribute flyers opposing the military draft during WWI. I think it is also important to understand that this ruling was overturned, which probably means it *is* legal to protest against a draft during wartime.
If you experiment with "yelling fire", you will probably find that no law actively suppresses your right to do it, and you will also almost certainly find that no law protects you from the ass kicking you receive as a result -- or from the harsh manner in which you are removed from the theatre by its proprietor or the police.
Oliver Wendell Holmes was helping to establish what rights were, and to what extent the expression of one's rights were allowed to abridge the rights of others.
Today, the test for whether first amendment protections my be abridged on any activity, is if the state can argue that it is intended to, and will likely incite "imminent lawless action", a stricter standard than the "clear and present danger" which had existed before 1969. Essentially the government may "place time, place and manner" restrictions on First Amendment activities, if it can argue that the activities are likely to cause a riot.
For what it's worth, I do believe the Federal Government has clearly failed to adhere to this standard on numerous occasions.
-fb Everything not expressly forbidden is now mandatory.
I did read the article and I do concede that in the takedown letters they state "Refrain from posting or causing to be provided any AACS circumvention offering or from assisting others in doing so, including by direct links thereto, on any website now or at any time in the future." However, I question how reasonable this is. First, there is the untested (AFAIK) issue if such a short string of numbers is really a circumvention device. We're not talking about code (eg. DeCSS) which actually does something, this is just a string of numbers. If this is ruled to be part of a circumvention device we're in trouble because by that logic the first part of the string '09' would be a part of a circumvention device and prohibiting people from distributing the number 9 would be rather unfortunate. Secondly, I don't think other recipients of takedown notices (eg. Blogspot/Google) are proactively preventing "...any AACS circumvention offering..." from being posted so my assumption would be that they are only acting on sites specifically mentioned in takedown notices and I wonder why Digg should be different. In any event, I was only stating what the reasons for the Digg revolt were; right, wrong or otherwise.