Jon Johansen - v - Hollywood

by Jon Newton - 12/17/2002

"Peg-Leg Geek with his cutlass, eye-patch and - presumably - a penguin on his shoulder ..."

Many (most?) prosecutions started by the RIAA (Recording Industry Association of America) and MPAA (Motion Picture Association of America) on behalf of what's euphemistically called 'Hollywood' are farces, murky and badly scripted. And none is more so than the trial featuring Jon Johansen, the 19-year-old programmer from Norway who came up with DeCSS, an app Hollywood contends lets people pirate DVD content.

CSS, of course, equals Content Scrambling System, which is supposed to encrypt DVD data so it can be read only by 'licensed' (ie, MPAA-approved) DVD players. However, the MPAA CSS' licensing section, the DVD Copy Control Association (DVD-CCA), flatly refuses to license CSS to projects such as LiVid (Linux Video), an open source collaboration aimed at creating interoperable software tools.


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But the DVD-CCA's efforts are as chaff on the wind because in 1999, the CSS source code was broken down to reveal the descrambling algorithm, and published widely online.

Actually, whoever cracked the code needn't have bothered because DVD-CCA president John Hoy Revealed All in the movie industry inspired California lawsuit against Andrew McLaughlin, Andrew Bunner, John Kew, et al.

(Incidentally, before joining the DVD-CCA, John worked for Toshiba America as Director of Digital Video Disc Marketing and Director of Strategic Alliances. And by an amazing coincidence, Toshiba was one of the CSS developers. 'Small World,' as Kurt Vonnegut Jnr would say.)

But back to the story:

Like a lot of other people, Jon believes that if you buy a DVD, you should be able to use it on anything, and in any way, you like. He, for instance, wanted to watch his own DVDs on his Linux box. But under CSS, he couldn't. So he developed DeCSS which both unlocks DVDs and lets users fast-forward (through commercials, for example), or copy.

Ironically, Jon won Norway's prestigious "Karoline Prize," awarded annually to a Norwegian high school student with excellent grades who makes a significant contribution to society outside of school.

Guess what he won it for?

In the meanwhile, Norway's "Byrett" (district court) has finally begun the Jon Johansen DVD case in which the Norwegian government is trying to nail someone for the crime of using his own property in the way he wants, in effect. The trial was supposed to have started last summer, but was postponed while a "technology savvy judge" (as mpawlo put it in GrepLaw) was found.

Jon is charged under the Norwegian Criminal Code section 145(2) which prohibits breaking into someone else's 'locked' property - for example a bank or telephone company system - to illicitly access data.

"The trial this week has been dominated by the prosecution's painstaking attempts to argue that Johansen deliberately contributed to the removal of copy protection of DVD films leading to their free distribution on the Internet," says Norway's Aftenposten newspaper.

For its English-language reports of the trial so far, go here, here and here.

(NOTE:Warner Bros has just started filming Cascading Style Sheets, a stirring adventure/drama with Keannu Reeves as Jon, Hilary 'Reach Out' Rosen as the romantic interest and Honest Jack Valenti as the kindly old priest to whom Jon ultimately confesses all, say sources close to the MPAA and RIAA.)

In the meanwhile,whichever way it goes, the Johansen case is going to have a lot of interesting (in the Confucian sense) ramifications and a lot of people are following it, including Eddy Welbourne.

Read on ...

THE TRIAL - DAY ONE
"So I took a day's holiday to attend the opening of the trial. I showed up slightly late (being in town by 9am stretches my dormouse tendencies somewhat) and handed out some pieces of blue ribbon I'd cut before setting off, and some pins, to familiar faces. My knowledge of Norwegian isn't up to the intricate cut and thrust of a court-room; and I have a rather dire head-cold which is adding to the confusion by messing with: my brain's perception of the boundary between reality and the semi-dream state I kept nodding off into; and my memory's clarity as to which things were said in the trial and which things were my conversations with others. Consequently, the following will swing between reportage and gonzo in its approach to what was going on; caveat lector.

"Some of the time I had some idea what was going on, but mostly because someone was quoting from e-mails or IRC logs that were på engelsk. Maybe Alfred (of www.oplug.org) will reply to this with a clearer indication of what was said. (A quick introduction: the OPLUG list Cc'd here is the Oslo Pils and Linux Users' group; while free-sklyarov-uk, a.k.a. ukcdr.org, is the Campaign for Digital Rights, and the list-name is a reminder of its origins.)

"The court is presided over by a judge/magistrate (I'm not claiming to know exactly which is the more apt description) assisted by two experts in the topic area, selected from outside the legal profession by some kind of negotiation-with-veto protocol between the defense and prosecution. I doubt I shall ever see a more beautiful judge ;^> The prosecution is Økokrim, the Norwegian state economic/ecoligical crime-busting bureau (recently also involved in chasing down some quite dramatic big financial scandals). Their lawyer did most of the day's talking, to which I'll return. She had an assistant, who had relatively little to do: his moment of glory was driving the (windows) lap-top on which he demoed use of The Matrix game DVD, copying of .vob files from it to the computer's hard-disk, non-use of these copies (because encrypted) and use of them with the help of DeCSS.

"The defense team had two lawyers; a shaved-bald guy leading the team, with a grin more-or-less premanently fixed on his face, and an assistant whose (visible) role was even smaller than that of his opposite number. Oh, and a 19-year-old accused of pissing off some big American corporations, back when he was 15 - you may have heard of him ...

"The day began with the prosecution setting out the charge and the substantive form of the case (at least, that's what I *think* she was doing); that took an hour and a bit, including the Matrix demo. Smiling man then replied with a somewhat briefer statement of how our Jon wasn't a naughty boy, or at least that's what I think he was saying. Somewhere in all that, Jon got asked some questions and I guess one of them was the formal one about guilt or innocense, but ... it was all på Norsk to me. Shortly before noon, Jon was called to the witness stand; but he'd only answered a few questions when we broke for lunch. The entire afternoon session had Jon in the witness stand, albeit mostly with the prosecutor reading stuff out and only occasionally asking him questions.

"I may have mis-understood, but my impression is that Jon is charged under some law relating to meddling with someone else's property by breaking into computers. As such I sort of expected the case to revolve around issues of how he accessed the windows-player from which I gather he lifted some keys, whether that access was naughty or legal, etc. [Not that this would really suffice, since it was *his* computer - it didn't belong to the proprietor of the DVD program, let alone to the DVD-CCA.]

"Far from it.

"The prosecutor went through the whole process of how DeCSS came into being; Jon involved in discussion of Speed Ripper (or some similar name; a binary-only DVD player from Drink Or Die) and how there's no way DOD would be releasing its source, that's not their style; Jon contacting Nomad, who'd written a decryptor but no front-end or keys; Jon blagging a copy of this and promissing not to circulate it; Jon writing a GUI for it [prosecutor asking what a GUI is - pardon ? - yes, really, the Økokrim counsel didn't appear to know], letting Nomad play with it, asking for permission to distribute the result; more saga, but I didn't catch it all. Nothing shocking or naughty. Prosecutor tried to make a big deal of a quote, from an exchange between Jon and Nomad, "we're behaving just like Microsoft", rather too obviously in jest to be a big deal.

"There was a fair bit of questioning about how DeCSS came to be released, including some stress between Jon and Nomad over a by mistake' upload which was hastily removed; and a whole lot of e-mails about why not to release it with the keys visible' (since this would just lead to the DVD-CCA revoking those keys and the company whose keys they were being liable to an ugly law-suit). The defense should have no real problem dealing with the issues in this as Jon being a naïve 15-year-old who just wanted to be able to play his DVDs and was eager to let other folk use his program, without concern over how folk might abuse it.

"Somewhere in that there was some coverage of Jon having three OSen installed (FreeBSD, GNU/Linux and Windows), during which the prosecutor got confused by Jon referring to "GNU/Linux", rather than "Linux" per se; and appeared to be confused about how one computer can have more than one O/S (or, at least, there was a confusion which appeared to be about dual boot).

"The prosecutor devoted a whole lot of attention to the fact that Jon was working on Windows, writing a program that only ran on Windows, taking pains to make the result run well on various versions of Windows; not writing for Linux. This presumably to undermine the 'I wanted a DVD player for my Linux box' argument - though I'd happily argue that, since he'd only just started playing with Linux at the time and had experience with Windows, the sane thing to do was to write a Windows version first, if only as practice; releasing it open source in some form would then give it plenty of scope to be ported to Linux by folk who knew how to do that well, so implementing for Windows is an effective way to *get* an implementation for Linux. In any case, he also has the entirely legitimate other reason to want a DVD player under his own control: to by-pass the MacroMedia access control - e.g. to be able to fast-forward over (trailers/advertising if any, but in any case) the US-specific legal notice that (IIRC - can anyone confirm/deny ?) gets put up for a while *even* on DVDs that're region-locked to be unplayable in the US (d'*uh*).

"Given that Økokrim confiscated everything in his home, at the time, to hunt for pirated DVDs - without success, not even copies of the DVDs he owns, which he's *entitled* to copy - it's going to be fairly easy for the defense to argue that what Jon wanted DeCSS for was - shock, horror - in order to view DVDs lawfully in his possession. The prosecutor even made a big deal of bits of the DeCSS distribution saying "this is only a decryptor" and how copying the .vob files off the DVD itself was a separate operation for which the user didn't need anything special. I was somewhat at a loss to see how this was meant to help her case ...

"Other folk I spoke to in recesses said that they thought the prosecutor was mainly aiming to portray Jon in a bad light, rather than actually showing any wrong-doing. Apparently she described the open-source hackers working on a DVD player as a criminal gang. There were quotes from some IRC groups frequented by copyright violators, including someone in one group outright describing the group as a bunch of criminals and telling Jon to go away because he didn't want to hang with a bunch of criminals. It's hard to see how they expect to dirty his name with the news that he quit that forum once this was made plain to him ...

"Smiling man, in his morning response to the charges, told the court about the glass-master stomping industrial press reality of DVD counterfeiting, and its lack of any need for decryption of the content in the process, as opposed to the industry-promoted myth of Peg-Leg Geek with his cutlass, eye-patch and - presumably - a penguin on his shoulder. "

"The press were out in force in the morning - the state television channel's reporter spoke to me briefly in the lunch recess, I explained about how a programmer needs to be able to write code to access the data on legally-acquired media; but when she suggested having her colleague point a *camera* at me I hastily re-directed them to Håkon Wium Lie (co-author of the *other* CSS, Cascading Style Sheets; and he was among the assorted folk vetoed by Økokrim to be among the judge's advisers), since he was conveniently on hand and is much better at that stuff. Plus, being Norwegian, he talks the right language.

"The trial is vaguely expected to take a week, but I shan't be getting to any more of it.

"Eddy." ===============

If you want chapter-and-verse on DeCSS, go here.


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Jon Newton is the editor of p2pnet.net and is a regular contributer to MP3 Newswire. Jon's site is devoted to the politics of digital music and his insights as well as those of his co-writers can be read there. We urge to to explore it.

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