In a case likely to heighten the debate over where fair use rules end and copyright infringement begins, Norwegian authorities on Wednesday indicted 18-year-old Jon Johansen for crimes related to a program he created that descrambles DVD code, according to the civil liberties group Electronic Frontier Foundation (EFF).
Johansen created the DeCSS (De Contents Scramble System) program in 1999 when he was 15 so that he could view his DVDs on a Linux machine. DeCSS defeats the copyright protection system known as Contents Scramble System (CSS), which the entertainment industry uses to protect films distributed on DVDs. Johansen created and published DeCSS as part of an open-source development project to build Linux DVD players called LiViD, or Linux Video. The teen also posted the software on equipment owned by his father, Per Johansen, according to the EFF.
The Motion Picture Association of America (MPAA) took umbrage with Johansen's descrambling efforts, the EFF said, and over two years ago asked Norwegian authorities to launch a criminal investigation into both Jon and Per Johansen.
The Norwegian Economic Crime Unit charged the younger Johansen Wednesday with violating section 145 (2) of Norwegian law, which outlaws breaking into another person's locked property to gain access to data that one does not have a right to access, according the EFF.
"Hollywood is a very powerful force and when they put pressure on a country like Norway it is felt," said EFF Intellectual Property Attorney Robin Gross. "It is no surprise that they bowed to the pressure."
The EFF asserted that Johansen should not have been prosecuted for breaking into his own property. The U.S.-based organization added that the law was previously used only to prosecute individuals who violate someone else's secured system.
Johansen could face two years in prison if convicted, the EFF said.
Johansen's indictment is just the latest in a string of high-profile cases, with differing results, that are testing the boundaries of copyright protection and free speech and fair use rights.
In fact, DVD CCA, the MPAA's CSS licensing entity, already sued Johansen for publishing DeCSS, claiming that he violated a trade secret under the Uniform Trade Secrets Act. A California appeals court ruled last Nov. 1 that DeCSS could not be barred from publication, however.
The defense then moved for a summary judgement that would no longer make the DeCSS a trade secret. Gross said that she believes that the DVD CCA pressured Norwegian authorities to indict Johansen after losing the California case and in the face of the summary judgement. The DVD CCA has asked for a stay on the summary motion pending the outcome of Johansen's indictment, Gross said.
Representatives for the DVD CCA refused to comment on Johansen's indictment Friday.
"The MPAA is working very hard throughout the world to have some stringent intellectual laws passed, " said Gross. "The irony is, they are prosecuting their own fans," Gross added.
The MPAA also sued hacker magazine 2600:The Hacker Quarterly for publishing, and linking to DeCSS via its Web site. A New York federal appeals court upheld a ruling last Nov. 29 that prohibited publishing the code, saying that it violated the 1998 Digital Millennium Copyright Act (DMCA). The DMCA makes it illegal to provide information on how to bypass copyright protection controls.
Johansen provided testimony in the 2600 Magazine case, explaining how he created the DeCSS program in conjunction with two other people.
With the DVD CCA's failed attempt to prosecute Johansen already on the record, it remains to be seen how successful the Norwegians will be at trying the teen. Representatives for the EFF have stated that they do not believe the case will stand under the Norwegian justice system. Gross said that there are already protests planned in Norway opposing the indictment, and said that she expects that Johansen's U.S. supporters will also organize rallies.
"We believe this case will be won in court of public opinion," Gross said.
Details of Johansen's Norwegian indictment could not be independently confirmed Friday.