FC: A first-hand account of Day One of Johansen trial in Norway

From: Declan McCullagh (declanat_private)
Date: Mon Dec 09 2002 - 11:29:14 PST

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    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 <davidat_private>
    To: declanat_private
    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 <davidat_private>
    
    
    [long headers snipped --DBM]
    
    
    From: Edward Welbourne <eddyat_private>
    X-Uri: http://www.chaos.org.uk/~eddy/
    Message-Id: <E18LSdB-0001tp-00at_private>
    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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