The acquittal in Oslo, Norway, of 19-year-old Johansen, one of the creators of the DVD-cracking code known as DeCSS, is one of several recent setbacks for intellectual-property holders seeking to exert more control over the digital versions of their products.
"It feels a bit like the tide is turning in these copyright cases," said Cindy Cohn, an attorney with the Electronic Frontier Foundation. "It really feels like there is some sanity creeping in." The EFF and others have been concerned that digital copyright law hampers legitimate research into encryption and other technological matters and stifles consumers' rights.
"The Norwegian judges' ruling protects intellectual freedom by recognizing that once you buy a DVD movie, Hollywood no longer has a lawful right to control the way you can access that film," said Robin Gross, executive director of IP Justice, a new group hoping to promote balanced international intellectual-property laws.
Until recently, movie studios, record labels and software companies have largely succeeded in quashing efforts to remove anticopying protections from digital material, or efforts to tell consumers how to remove such protections themselves.
But on Tuesday a panel of judges ruled that Johansen did not violate Norway's laws when, in order to use a Linux computer to play a DVD he'd purchased, he broke protections on the disc. That ruling--coupled with a U.S. federal jury verdict thatdidn't violate criminal copyright charges by selling cracking software--points to increased sophistication on the part of the legal system when dealing with such matters, activists say.
"Before, courts just rolled right over when companies cried 'piracy,'" Cohn said. "Now we're seeing courts take a closer look."
You buy it, you can break it
Johansen's case began three years ago, when Norwegian authorities raided his home after film studios complained that his software would let people disseminate copies of DVDs. Prosecutors Johansen with violating Norway's criminal digital piracy laws.
But judges cleared Johansen after he said he'd created DeCSS so he could play a DVD he'd bought on a Linux machine. The court said Johansen had the right to access a DVD he had legally purchased.
In the ElcomSoft case, a jury ruled in December that the company did not violate U.S. copyright law by offering software that could remove protections from Adobe's eBooks. Jurors interviewed after the case said they cleared the Russian company because although the software violated U.S. laws against code-cracking, executives didn't design it for illicit uses.
Though the Johansen saga and the ElcomSoft case have no legal bearing on each other, activists are pointing to the two rulings as a sign that more judges and juries may consider the intent of code crackers rather than just the possible illegal uses of the tools they create.
In earlier cases, judges have had little sympathy for people who posted or offered cracking code that could theoretically be used to copy DVDs.
In another case related to the DeCSS code, a publisher who posted the code onlinerepeated rounds in its federal court battle. The movie studios had sued the hacker magazine 2600, saying the publication's posting and linking to DeCSS promoted copyright infringement. A federal judge and an appeals court agreed.
Ironically, 2600 did less with the code than Johansen did. The publication merely posted the code and linked to other sites that contained it. Johansen actually helped to create it and used it to crack a DVD.
However, Norway's digital copyright laws are not yet as stringent as those of the United States, although intellectual-property holders are pushing to tighten restrictions on copying and cracking digital content throughout Europe.
Defanging the DMCA?
At the same time, some U.S. lawmakers are looking to cut code crackers some slack--the issue of intent has become a topic of discussion on Capitol Hill as well.
On Tuesday, Rep. Rick Boucher, D-Va., reintroduced a bill he unveiled late last year that he said would protect consumers and legitimate researchers by carving out more protections for them in the Digital Millennium Copyright Act. In most circumstances, the DMCA outlaws cracking copyright protections.
"The fair use doctrine is threatened today as never before," Boucher said in a statement. "The reintroduced legislation will assure that consumers who purchase digital media can enjoy a broad range of uses of the media for their own convenience in a way that does not infringe the copyright in the work."
Boucher, a longtime critic of the DMCA, had been promising the bill for years but only introduced the measure after noticing more support for consumer rights among lawmakers and others. Supporters of the latest version of the bill include Intel, Verizon, Philips Electronics North America, Sun Microsystems, Gateway, and the Consumer Electronics Association.
Soon after the introduction of Boucher's bill, the Business Software Alliance, an antipiracy trade group made up of the major software companies, said it was concerned about the measure.
"We fear that broad exemptions to the DMCA could undermine the core purpose of the Act: That technological measures can have an important and proper role in curbing piracy," the BSA said. "Our principal reservation is that the bill could make it harder for software companies to take action against pirates."
Jonathan Band, a partner at Morrison and Foerster who worked to limit the scope of the DMCA when Congress was debating it, said the U.S. risks losing encryptions programmers to foreign countries because of the DMCA and, now, the Norway ruling.
"Software developers, encryption researchers and so forth are in a better environment in Europe than they are inside this country," he said. "That puts U.S. developers at a competitive disadvantage," Band said.
What's more, Band said developers in the United States should still watch their step because the Johansen ruling has no impact on U.S. cases.
"It might give people a false sense of security," Band said. "They still need to worry."
The Motion Picture Association of America declined to comment on the matter except to say it encourages Norwegian authorities to think about pursuing the matter further.
"We understand that the prosecution in Norway is reviewing whether to take an appeal, and we support that consideration," the MPAA said in a statement.