[linux-elitists] FC: A first-hand account of Day One of Johansen trial in Norway (fwd)

Eugen Leitl eugen@leitl.org
Mon Dec 9 11:46:46 PST 2002


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---------- Forwarded message ----------
Date: Mon, 09 Dec 2002 14:29:14 -0500
From: Declan McCullagh <declan@well.com>
To: politech@politechbot.com
Subject: FC: A first-hand account of Day One of Johansen trial in Norway

Background on case:
http://www.politechbot.com/cgi-bin/politech.cgi?name=johansen
Photo:
http://www.mccullagh.org/image/950-10/jon-johansen-3.html

---

From: David Harris <david@geeklawyer.org>
To: declan@well.com
Content-Type: multipart/mixed; boundary="=-5zLS3sP+DPtnUARlEn6Z"
Date: 09 Dec 2002 19:08:45 +0000

declan,
	An eye witness account of the first day of Jon Johansen deCSS trial in
Norway
-- 
David Harris <david@geeklawyer.org>


[long headers snipped --DBM]


From: Edward Welbourne <eddy@chaos.org.uk>
X-Uri: http://www.chaos.org.uk/~eddy/
Message-Id: <E18LSdB-0001tp-00@utter.chaos.org.uk>
Date: Mon, 09 Dec 2002 18:27:49 +0000

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 HÃ¥kon 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 shalln't be getting
to any more of it.

	Eddy.




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