IP: A Legal Perspective on the Norwegian DeCSS Case

[Dave Farber <farber () cis upenn edu>]

> Date: Tue, 25 Jan 2000 22:12:30 -0800
> From: Martin Minow <minow () pobox com>
> Subject: A Legal Perspective on the Norwegian DeCSS Case
> To: farber () cis upenn edu
>
> EFF's web site <http://www.eff.org> has an interesting legal
> analysis of Jon Lech Johansen's problem, written by Prof. Jon Bing
> <http://www.eff.org/IP/Video/DeCSS_prosecutions/Johansen_DeCSS_case/20 
> 000125_bing_johansen_case_summary.html>
>
> To summarize, Johansen is charged with a "'classic' hacker" violation
> making it illegal to break a security mechanism to access data. This
> "is integrated into a clause containing the traditional prohibition
> of opening or breaking the seal of another's letter." In a previous
> prosecution, the Norwegian Supreme Court did not apply this law
> to a person accused of breaking pay tv encryption.
>
> "In the case of Mr. Johansen, the security of a compact disc owned
> by him was broken. It is not settled in Norwegian law whether the
> Criminal Code sect 145(2) applies in such a case. Certainly it falls
> outside the typical situation for which the provision was originally
> drafted. Also, as indicated, the Supreme Court has shown some caution
> in the interpretation of the provision. Under the general doctrine of
> Norwegian criminal law, criminal provisions are not interpreted to
> include analogous cases falling outside the natural meaning of the
> provision in question."
>
> Mr. Johansen is also being investigated as to whether his decoder
> program may facilitate illegal DVD copying. I.e., "it is not the
> breaking of the codes or the development (possibly copying) of the
> program in question on which the prosecutor at this stage is focusing,
> but contributory infringement of the copyright."
>
> "This issue has not been before Norwegian courts before, but could,
> perhaps, be related to linking to illegal MP3 files. Cases with
> respect to the latter has been tested before Swedish courts (with
> acquittal as result), and are also under investigation in Norway."
>
> Transcribed by Martin Minow
> minow () pobox com