Norwegian prosecutors have indicted Jon Johansen for his role in creating the DeCSS program that unlocked a DVD copy protection system and unleashed a series of lawsuits by the motion picture industry.
The National Authority for Investigation and Prosecution of Economic and Environmental Crime in Norway (OKOKRIM) indicted Johansen on January 9th for violating Norwegian criminal code section 145(2), which prohibits the opening of a closed document in a way that gains access to its contents, or breaking into a locked repository. The law also prohibits the breaking of a protective device in a way that unlawfully obtains access to the data.
If Johansen is found to have committed the felony for the purpose of unlawful gain, he could serve up to two years in prison.
"The way we understand it, the data is the content of the DVD, what you are breaking is the encryption and what you are getting access to is the data on the disk," said Halvor Manshaus of the Oslo law firm Schjodt, which is representing Johansen.
Manshaus says the law has previously been used to prosecute those who broke into bank or phone company records. But he says this is the first time that the law has been used to prosecute someone who broke an encryption system. The case is expected to go to trial before summer.
"There was a Norwegian Supreme Court ruling where this regulation has beenapplied before, but that was a case where he was accessing or breaking into a system that you are not legally entitled to access," said Manshaus. "The distinction here is that he is charged with breaking a code and accessing the data that he is allowed to access. He owned the DVD disk."
The indictment comes more than two years after the Motion Picture Association of America (MPAA) contacted OKOKRIM prosecutors and requested a criminal investigation of Johansen and his father, Per, who owned the PC on which Johansen posted DeCSS.
Indictment follows US lawsuits
Manshaus says the MPAA also asked OKOKRIM to charge both father and son with contributory copyright infringement. OKOKRIM did not pursue this charge against Jon Johansen, and Per Johansen has not been charged under either complaint.
Neither father, nor son is accused of breaking any U.S. laws. Johansen, who just turned 18, was not available for comment.
The movie industry fears that the removal of the DVD encryption could spark unauthorized copying of DVD movies.
But Johansen has maintained that DeCSS was intended not to make copies, but rather to create DVD playback software for computers running the Linux operating system. Johansen is co-founder of a group called MoRE (Masters of Reverse Engineering).
Two members of the group, which Johansen knew only by their screen names, helped him develop DeCSS in 1999. The group found that the Windows-based DVD player XingDVD from Xing Technology Corp. had not hidden its decryption key. MoRE used this decryption key to make DeCSS.
Manshaus says Johansen never used the utility to make copies of DVDs.
Jan Bing, a Norwegian legal expert who testified for the EFF in a related California civil case, concluded in a legal analysis that, "there is no legal precedent or court decision in Norway to support a claim that reverse engineering is a violation of Norwegian criminal law." He added that 145(2) could, in theory, forbid the "breaking of a protective device," to gain access to information on a disk, but he noted that there is no supporting Norwegian precedent.
A spokesmen for the MPAA was not immediately available for comment on the indictment. Robin Gross, a staff attorney with the Electronic Frontier Foundation (EFF) that has supported Johansen said the motion picture industry has pushed Norwegian prosecutors to indict the young programmer. "I think they just finally succumbed to Hollywood pressure," said Gross.
"The Norwegian government finally had to bow to the demands of Hollywood to prosecute Jon."
In January, 2000, police entered Johansen's home and seized two personal computers, a mobile phone, and several computer disks. Johansen was taken to a police station and questioned for nearly seven hours and released.
Gross says the current action against Johansen stems from two lawsuits filed in the U.S. The first lawsuit, was brought in 1999 by the DVD Copyright Control Association (DVD CCA) in California Superior Court, against Andrew Bunner and others. The suit claimed that Web publishers who posted or linked to DeCSS unlawfully misappropriated trade secrets. The suit demanded that the publishers delete the information. While he was not named in the suit, Jon Johansen decided to remove his link to DeCSS from his web site.
On November 1, 2001, the California Court of Appeals reversed the court's preliminary injunction and confirmed that the publication of DeCSS is protected by the First Amendment. Bunner and his legal team have asked the court to recognize that because DeCSS is widely available on the Internet, it cannot be considered a trade secret.
The second case involved a federal suit in New York court against 2600 Magazine which posted the DeCSS code on its Web site. The major movie studios sued 2600 Magazine, claiming that the Digital Millennium Copyright Act (DMCA) bans publication of the program.
On November 30, 2001, the Second Circuit Court of Appeals upheld a lower court decision banning the magazine from publishing DeCSS. The court agreed that computer programs are protected expression. But it found that when DeCSS is published on the Internet, the fact that it could be misused justified a complete ban on the program.
Despite the lawsuits, Gross says that Johansen, who now works for a software company, is respected in Norway. She notes that he was awarded Norway's Karoline Prize given each year to a Norwegian student who receives top grades and makes a contribution to society. Gross says the EFF plans to coordinate protests and a letter-writing campaign similar to that which lobbied for the release of Russian programmer Dmitry Sklyarov.
Sklyarov was jailed and later released for distributing software that could be used to circumvent access restrictions on Adobe's e-book format.
"We want to get the Norwegian public to come together and put some political pressure on the prosecutors to drop the charges against Johansen," said Gross.
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