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[FYI] (Fwd) FC: A first-hand account of Day One of Johansen trial in Norway



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

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 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 shalln't be
getting to any more of it.

 Eddy.




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