Johansen wins round two [LWN.net]

December 23, 2003

This article was contributed by Joe 'Zonker' Brockmeier.

Jon Johansen received an early Christmas present from the Norwegian appeals court in Oslo. Judge Wenche Skjeggestad handed down the unanimous decision of the seven-judge panel Monday, which upheld the lower court's ruling. According to the appeals court, Johansen had done nothing wrong in the creation and distribution of the DeCSS DVD descrambling code, and Norwegian citizens are free to access content and make personal copies of legally-purchased DVDs. While many have been watching the case with interest, it still came as a surprise that the verdict, which was not expected until January, was rendered so quickly.

Johansen was charged with criminal violation of Norwegian law in 2000 for writing and publishing DeCSS. The case was set in motion after the DVD Copy Control Association (DVD CCA) and Motion Picture Association of America (MPAA) complained to the Norwegian Economic Crime Unit (Økokrim) about the distribution of DeCSS. According to the letter sent to Økokrim by the DVD CCA's lawyer, Simonsen Musæus:

DeCSS makes it possible with simple means to decrypt the encrypted audio/video-vob files on the DVD discs, and stores them on the PC's hard disk unencrypted. DeCSS also makes it possible to transmit audio/video-files over the Internet in unencrypted and unprotected form. This facilitates duplication of an unlimited number of unauthorized copes. Consequently, Jon Johansen has contributed to illegal distribution of movie files stored on DVD discs, or attempted to contribute to such illegal distribution.

However, the court noted that prosecutors had failed to prove that DeCSS had been used for copyright infringement, and that it was reasonable to make copies of DVDs for personal use. As the Electronic Frontier Foundation's Cindy Cohn noted when Johansen was first acquitted by the lower court, "It really feels like there is some sanity creeping in."

Sanity has, apparently, failed to make a stop at the MPAA. The association has rushed to condemn the Norwegian court's decision and released a statement that dubbed Johansen a "serial hacker" and calling on the Norwegian parliament to "move quickly" to "correct this apparent weakness in Norwegian law." It is, unfortunately, also possible that Johansen's legal travails are not quite over yet. Norwegian prosecutors have two weeks to appeal the appellate court decision to Norway's supreme court.

If found guilty, Johansen could have been sentenced to two years in prison. Prosecutors, however, had asked the court for a lesser suspended sentence in the Johansen case, apparently aiming to set precedent rather than seeking to jail Johansen.

The Johansen case makes it quite clear that the entertainment industry is seeking more than a way to curtail illegal copying. While the prosecutors and the MPAA have claimed that DeCSS opens the door to copyright infringement, there is no need to decrypt DVD content to make copies of DVDs -- and no evidence that DeCSS is being used to "pirate" movies.

It is, however, necessary to use DeCSS or a similar tool to decrypt content to make use of the content legitimately on Linux or other systems that lack DVD playback software. The choices available to movie enthusiasts on Linux are somewhat unpalatable: Risk legal prosecution for creating or using tools such as DeCSS, use other operating systems to play movies on laptops and home PCs, or remain unable to watch legitimately-purchased movies on a computer at all.

The Johansen verdict is a welcome victory, but it is hardly a major one. While those in Norway may breathe easier (at least for the moment), those of us in other countries with more repressive laws still lack the legal ability to make copies of legitimately-purchased media.

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Andrew Bunner case in California

Posted Dec 24, 2003 6:56 UTC (Wed) by ncm (subscriber, #165) [Link]

This result bears on the Andrew Bunner trade-secret case in California. That court found that since the trade secret was (supposedly) illegally obtained, Andrew Bunner and several hundred "John Does" had acted improperly in posting DeCSS, and ordered them not to post it.

At the hearing the question came up whether in fact the reverse engineering involved was legal under Norwegian law. The judge called for opinions from Norwegian lawyers. The plaintiff trotted out a tame Norwegian lawyer who asserted (without support of any kind) that it was not legal. The defendant's lawyer said nothing in Norwegian law or case law supported any opinion one way or the other. The judge took that to mean that in fact it wasn't legal. That meant that the MPAA still had a valid trade secret in CSS.

Now that it's established that in fact the reverse engineering was legal, Bunner et al. should be able to have the decision vacated. (Shame on that judge for his bias.) This should mean that the MPAA's trade secret protection on CSS cannot any longer be enforced.

Johansen wins round two

Posted Dec 24, 2003 11:46 UTC (Wed) by dash (subscriber, #6182) [Link]

While many have been watching the case with interest, it still came as a surprise that the verdict, which was not expected until January, was rendered so quickly.

At the end of the court proceedings (11. December) the chief judge Wenche Skjæggestad announced that the verdict would come before Christmas, so it shouldn't really be such a huge surprise.

I was one of the judges in the case ("lay judge with relevant technical expertise"), so I can say this with some authority. :-)

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Dag Asheim
Linpro AS
www.linpro.no - The leading Linux company in Norway