Singularity Law

What’s a lawyer to do? Your client tells you to send a nasty letter to Digg.com, demanding that it immediately take down an encryption key that can unlock the digital right management on HD-DVDs. You send the letter. Digg, “acting on advice of its lawyers,” complies. The CEO posts a notice on the site, indicating that it took down the posting to comply with a cease and desist letter, citing Digg’s Terms of Use as justification for taking down the posting

And then all hell breaks loose. In what has been referred to as the first Internet riot, and the “digital Boston Tea Party,” people begin posting the key everywhere – back on Digg, on other websites, chat rooms, printing it on t-shirts, embedding it into poetry, and singing it in videos posted on YouTube. In light of the enormous backlash, Digg reversing its policy and posted a statement, saying:

“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.”

As noted by Fred von Lohmann, a staff lawyer at the Electronic Frontier Foundation: “It’s a perfect example of how a lawyer’s involvement can turn a little story into a huge story. Now that they started sending threatening letters, the Internet has turned the number into the latest celebrity. It is now guaranteed eternal fame.”

So what’s a lawyer to do? Stop sending out cease and desist letters? Continue sending out cease and desist letters? What other choice is there? The fact is that laws only work as long as most citizens are willing to comply with it. Once a large enough group decide that the law is irrelevant, or even socially harmful, the law becomes impossible to enforce. Too many people violate the law and enforcement is futile. The RIAA should have figured that out by now – but it has not. Despite the thousands of lawsuits it has filed worldwide, illegal downloading continues unabated.

Civil disobedience has a long tradition. And this is just the latest instance of such civil disobedience – what is different is that it took place online. Now that the “mob” has tasted victory, and has realized that they are too numerous to prosecute, they will be emboldened to act again. It may be another DRM take-down notification that triggers their action, or it may be something completely different.

What is a lawyer to do? Now that lawyers know about the potential for a revolt if they try to enforce a client’s rights online, should they advise their client not to enforce those rights? If they don’t, could they be found to have committed malpractice if their efforts result in a similar spate of civil disobedience that harms their client?

If the law cannot be effectively enforced, and consumer anger is leading to widespread disobedience, should the law be reconsidered? Should it be modified to make it more palatable, or should it be repealed? The Digg uprising should be the beginning of a dialogue concerning the proper balance between the rights of copyright owners and those of the public. If not, it is likely that this is just the first of a continuing series of such incidents.