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
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
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
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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