Jon Lech Johansen, also known as DVD Jon, has been acquitted by a Norwegian court of charges over his development and distribution of DeCSS, a program that can be used to break the digital copy-protection mechanism of DVDs, his attorney said Tuesday.
The court found that Johansen was entitled to access information on a DVD that he had purchased, and was therefore entitled to use his program to break the code, attorney Halvor Manshaus said Tuesday.
Johansen's distribution of the code on the Internet was also considered in depth by the court, and it found that "this program could be useful for both legal and illegal purposes, like many other devices," Manshaus said. "If a person's motive is to solely encourage or solicit illegal actions, then it would be illegal [to distribute it]," but the court found that Johansen's motives were not to encourage illegal actions, he said.
"This is a very good verdict. There was very solid work from the court, with all of the technology and legal questions discussed thoroughly. The court made a real effort to understand all of the issues and took a principled position after a lot of legal interpretation," Manshaus said.
Johansen created a program in 1999, called DeCSS (also known as De Contents Scramble System), to crack the CSS (Content Scrambling System) copy protection on DVDs, and made the code available to others on the Internet. Norwegian police raided his home in January 2000 after the Motion Picture Association of America (MPAA) filed a complaint.
"This is extremely encouraging," said Julian Midgley, a spokesman for the U.K. Campaign for Digital Rights, on Tuesday.
The U.K. Campaign for Digital Rights lobbies for fair use rights for copyright material. So-called fair use rights in place up to now have allowed for a certain amount of copying of copyright material for personal use. But fair use laws have come under increased scrutiny in the last few years, as more people have access to technology capable of reproducing and transmitting copyright material around the world.
"The fact that a civilized, European government has ruled this way could lend weight to [our] arguments ... Things have been going against us so it's good to see a court turn around and say 'you have a bit of a point'," Midgley said.
However, while pleased that Johansen had been acquitted, Midgley said that anyone who attempted the same thing in the U.S. or the U.K. would be likely to find themselves in serious trouble.
Marc Zwillinger, a Washington, D.C.-based attorney with Kirkland & Ellis, agreed.
Under the U.S.'s 1998 Digital Millennium Copyright Act (DMCA) not only is it illegal to circumvent access control preventions, it is also illegal to distribute the code to others, said Zwillinger, who specializes in cyberlaw.
Furthermore, he pointed to the case of 2600 Magazine, the self-dubbed "Hacker Quarterly," which was prohibited from publishing or linking to sites containing the same DeCSS code written by Johansen.
"It was the same code, and it didn't fly [in a U.S. court]," Zwillinger said.
2600 Magazine was sued in late 1999 by eight major motion picture studios for publishing and linking to the code. In 2000, the studios won their case, but the legal battle wore on until the magazine decided in July of last year that it would not seek an appeal to the U.S. Supreme Court.
At that time, Electronic Frontier Foundation Legal Director Cindy Cohn, who helped represent 2600 in the case, released a statement saying that "later cases will provide a better foundation for the Supreme Court to act on the problems created by the Digital Millennium Copyright Act."
Whether Johansen's acquittal serves as an influential precedent in future digital copyright cases remains to be seen.
One potential ripple effect is that people who wish to circumvent digital copyright protection, or distribute circumvention code, could chose to locate themselves in countries with laws like Norway's, Zwillinger said.
"This makes technology vulnerable in these countries," Zwillinger said.
Countries that do not have digital copyright laws as stringent as the U.S.'s could become a growing concern for the entertainment industry. Although Zwillinger said that a World Intellectual Property Organization treaty stipulates that countries need to have effective copyright protection measures in place, not all countries have signed the treaty and of those that have, some still haven't complied.
Even if just a handful of countries have lax copyright protections, the Internet is a global marketplace that makes that content available to everyone, Zwillinger added.
According to the attorney, the Norway ruling says to the MPAA that their reach is weakened abroad.
However, the MPAA refused to comment on Johansen's acquittal Tuesday.