Digging in

About the author
Becky Hogge is a freelance writer and broadcaster. She is the former executive director of the Open Rights Group, a London-based campaigning organisation that fights for civil and consumer rights in the digital age. She was previously the managing editor, and then technology director, of openDemocracy.net. She blogs here, and co-presents acclaimed London radio show Little Atoms. Her first book, Barefoot into Cyberspace, was published in summer 2011

As any mathematician will tell you, there are many different kinds of numbers. Aside from odds and evens, integers and primes, you can have real and unreal numbers, rational and irrational numbers, even imaginary numbers. But over the last few years, a new type of number has emerged: the illegal number.

In 1999, the Hacker Quarterly published a program called DeCSS that could crack the encryption code that prevented DVDs from being played on "unauthorised" machines. DeCSS was created to fill a gap in the market, because although DVD player programs existed to legally play DVDs on Mac and Windows computer operating systems, no authorised DVD-ROM drivers existed for those who chose to use Linux.

But despite the fact that DeCSS was primarily created not to let people copy DVDs, but to let Linux users watch episodes of Star Trek, Doctor Who and anything else they might fancy on their home PC, Universal Studios didn't like it very much. They took The Hacker Quarterly to court for publishing the code. The legislation under which they filed suit was the then fledgling Digital Millennium Copyright Act, or DMCA, and specifically its "anti-circumvention" clauses. This aspect of the legislation rendered illegal the production and dissemination of tools designed to crack copyright protection software, or DRM. It was agreed that DeCSS was one such tool, and Universal Studios duly won their case.

But it was already too late to stop DeCSS. The program, and the string of numbers or "illegal prime" which eventually came to represent it, was posted and re-posted all across the internet, and mirrored in jurisdictions beyond the reach of the American movie business. What's more, technologists were outraged that the US state had demonstrated through the courts its ability to restrain their ideas and creative output. They characterised the decision as a suppression of speech, and mocked the court's ability to enforce it by printing versions of the DeCSS code string on T-Shirts, converting the program into a haiku and even setting it to music. Thus the first illegal number was born.

DeCSS - to this day a numeric outlaw - is still regularly employed by Linux users who want to watch DVDs on their home computer. But last week saw a new chapter written in the story of illegal numbers. Again the narrative centred on code used to crack copyright protection measures in audio visual material. But this time, eight years on in the World Wide Web's development, the stage upon which that narrative played out seemed that much bigger.

The illegal number in question was the 16 byte hexadecimal encryption key that protects content on high definition DVDs. Although the key had been cracked several months ago - indeed, the speed with which it had been cracked had already made headlines in the tech press - it wasn't until the Advanced Access Content System License Authority (AACSLA), together with the Motion Picture Association of America (MPAA), started issuing cease and desist notices to anyone publishing the key that the story went mainstream. Almost instantaneously, T-shirts bearing the key went up for sale, and a song was composed. And in a contemporary web 2.0 twist, the new illegal number got its own group on the social networking site Facebook, obtaining over 4,000 members in under 24 hours.

But it was when the story hit the next generation of user-generated media outlets that feathers really started to fly. For some time, stories about the number had been being posted to Digg.com, a tech-focussed news site that is edited almost entirely by the community that reads it, through a system of one-click peer review, known as "Digging". Sure enough, around 1 May, Digg started receiving "cease and desist" notices regarding the publishing of the HD DVD key. The Digg team complied with the notices and began taking down all the stories which mentioned the key, even deleting the accounts of users who persisted in posting it.

But erasing the illegal number from Digg wasn't going to be as easy as that. Despite Digg's efforts, stories about the number kept reappearing on the site, posted by Digg's users, who had begun a mini-rebellion against the gatekeepers at Digg. Indeed, at one point on May 1 Digg's front page was exclusively devoted to stories about the HD DVD code.

As the day wore on, it became increasingly clear to Digg's founder, Kevin Rose, that he would be forced to choose between AACSLA and his customers. Unsurprisingly, he chose the latter, issuing the following statement: "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."

What happens next could be defining. Should AACSLA and the MPAA decide to back up their cease-and-desist claims and pursue Digg into the courts, the outcome will be tremendously important for new media. If AACSLA win, Digg's entire business model will be compromised. But if they lose, the case might leave a new precedent in its wake - that the controllers of user-generated news sites should be granted safe legal harbour from the media that results.

Although the latter outcome might seem far-fetched, what the Digg case proves is that current laws which govern media outlets are not sufficient to nurture next-generation media like Digg. After all, we are no longer in the days of hard-coded html 'zines like the Hacker Quarterly. In summer 2006, Kevin Rose appeared on the front cover of Business Week magazine, which then estimated the potential value of the Digg empire at some $200 million. Last week's shenanigans may have knocked a few dollars off that ambitious figure. But if user-generated media is worth anything at all, then the case of the illegal numbers deserves close scrutiny.