Johansen Prosecutors Appeal

kmitnick writes "Jon Johansen will be back in court, tried again in an appeals court, because Hollywood knows better than the Norwegian legal system." Norway's legal system is different than the U.S.; the government can appeal a loss in a criminal case.

duuuuuupe!

[Anonymous Coward]

http://yro.slashdot.org/article.pl?sid=03/01/20/18 32259&mode=thread

Re:Fair Use?

[Anonymous Coward]

FYI, norwegian law gives pretty good fair use rights, and copying is allowed for private use (just distribution/selling of copied material is illegal)

*sigh*

[Anonymous Coward]

And here I am, trying (unsuccesfully) to get DVDs (that I own) to play back under linux (that is free) on a laptop (that I own).

Hollywood could be helping me to achieve this.

Instead, they are continuing to spend taxpayers money to support their questionable business model, and defend a crappy piece of 'encryption', and completely ignoring customers like *me*.

I won't be buying another DVD until I have playback under linux working. Now if Hollywood want to get any more of my money sooner, perhaps they could help remove the hurdles.

Re:Double Jeopardy

[Anonymous Coward]

if the defendant thinks the court's decision is wrong, he/she can appeal...why shouldn't the prosecutors have the same possibility?
and btw, the maximum number of appeals in norway is 2 before the case reaches the supreme court (and the supreme court won't take most cases)

Double Jeopary in Norway

[NigelJohnstone]

Its not legal in Norway.

------------
1999-05-21 NOR-1999-L-53741
Act (No. 30 of 1999) to strengthen the position of human rights in Norwegian law (Human Rights Act).
Contains six sections whereby the following international human rights instruments are given force of national law to the extent that they are considered as binding on Norway: the European Council's Convention for the Protection of Human Rights and Fundamental Freedoms, its Protocol of November 1950, its Protocols Nos. 4 (securing certain other rights and freedoms), 6 (abolition of death penalty), and 7 (furthering certain human rights and freedoms);

http://natlex.ilo.org/Scripts/natlexcgi.exe?lang =E &doc=query&ctry=NOR&llx=02

-----------

Protocol 7 from November 1950 is here:

http://conventions.coe.int/treaty/EN/Treaties/ht ml /117.htm

Article 4 - Right not to be tried or punished twice

So they adopted it into Norwegian law as part of human rights legislation.
Needs a lawyer to check it out, but what they're doing isn't just unethical and a breach of human rights. ITS NOT LEGAL EVEN IN NORWAY.

Re:Double Jeopary in Norway

[JanneM]

They aren't. This is an appeal to a higher court, not a new trial. If it works as the Swedish court (and the legal systems are pretty close), it will be a reinterpretation of already established facts, with an eye to whether the relevant law was correctly interpreted. It is not "really" whether he is guilty or not, but a trial of whether the lower court did in fact do its job properly.

For those of you still screaming "double jeopardy", don't forget (again, I'm talking about Swedish, not norwegian court practice) that if the defendant appeals, the higher court can not increase the punishment from the lower court. Only if the prosecution appeals as well (which they need a law-technical reason to do) can the appeals court ever increase the punishment.

Re:Borgarting?

[Kjella]

Just in case anyone actually wondered, Borgarting has nothing to do with bogarting. First of all it's "Borgar" = name of the site, probably derived from Borg = Castle, and "ting" which means something like meeting or parliament. (Our national parliament is called Storting - grand "ting" if translated directly).

Was a very funny coincidence though :D

Kjella

Summary / Clearing things up.

[zokum]

Fair use in Norway:
Basically, you can make private copies of anything as long as you do not distribute them in any way. One might call it backups.

Appeal system:
You can appeal a sentence, but each time this is done the next trial is by a higher instance in the justice system. If a higher instance refuses to take on the case, the old verdict is the one that counts. There are 3 levels + the Human Rights tribunal in Haag or so.
1. Herreds/Byrett (county/city court)
2. Lagmannsretten (laymen's court)
3. Høyesterett (Supreme court)

The supreme court, (translated from http://www.mossbyrett.of.no/info/i_straff.html) cannot retry whether the accused is guilty or not. It is only there for matters og priniciples, and has more or less been abolished as an instance for appeals. So basically, you can be retried for the same crime, but only a very limited amount of times, and by significantly different courts.

Re:Double Jeopardy Possible in US

[fishbowl]

"If you're accused of a crime and prosecuted under state law in the state you reside, then acquitted, you can be tried again for the same crime by the feds."

The doctrine at work is Dual Sovreignty. The State cannot try you twice for the same crime, another State cannot try you, but since the State and the Federal government both have sovreignty over you, then you are subject to separate prosecution by both governments. It was an open question but was settled by the Supreme Court in one of the first Federal prosecutions for liquor under prohibition, US v. Lanza, 260 U.S. 377 (1922).

So you can thank the War on Some Drugs for it, but it goes back much further than most people seem to realize.

Re:They have no chance.

[Anonymous Coward]

They are not appealing to "fry" Jon. They are appealing to a higher court to see if the laws were interpreted correctly.
The whole case agains DVD-Jon is not about him being guilty or not for the procecutors, it's about testing the law, and what this verdict means to other somewhat similar cases.

Re:They have no chance.

[fobef]

Here is how it works in Sweden, which I suppose has a similar system.

All trials begin at the lowest instance.

After that the second instance can choose to accept an appeal. It is always harder to get an appeal accepted when trying to sentence someone who was declared not guilt in a lower instance.

Then there is the highest instance, which doesn't accept many cases every year, but this case most likely WILL end up there, because it is a new crime, and this is the instance which details how new, untested laws should be interpreted. If they make a clear enough innocent verdict in this case, no further "not guilty" verdicts would make it to second instance next time a person is tried for a similar crime under this law.

And no slashdot post is complete without... IANAL...

Not so in Norway...

[Kjella]

Here, any level of court is essentially free to set whatever sentence they want in a new trial, also including the Supreme court, though they *mainly* stick to law interpretation. They've changed sentence lengths to set the correct precedent though, if they feel it's too high or too low. In fact, they are also free to set it higher than what the prosecutor asks for (within the laws they're found guilty of) and have done so at times.

In short, it's the assumption that every step up is in a "more competent" (bigger jury, better judges and so on). You might call it double jeopardy - but I'm sure the US have examples of people which would have been found guilty if there had been more competent staff. Getting off because the lowest level of the court system just wasn't up to the task doesn't do much for justice either. You can however not be trialed for the same twice, though the supreme court can send it back down one step for a retrial, but once it's over it's over.

Personally, I have great trust in our Supreme court. They certainly aren't bending in the wind, some went as far as calling them racist based on what they let through under "freedom of speech". Not that I particularly agree with that case (think of hate speech as class-action libel), but they certainly aren't afraid to stand their ground. And I respect that greatly.

Kjella

Re:They have no chance.

[Anonymous Coward]

(Posting as AC, couldn't remember my l/p...)
-scootages

Here's a simplified explanation of how the courts work:

Jon was tried in "by-retten," equivalent of a county court. For all intents and purposes, the lowest court. Jon won the case, and unlike the US rule of double jeopardy, the government has the same right as the defendant to appeal.
Norway government choose to appeal the decision to "Lagmannsretten." (2nd tier, comparable to Federal Appellate Court). Again, both sides present their case, and the loosing party can choose to appeal to "Høyesteretten." Compare this to the US Supreme Court. This highest of courts only accepts a few cases each year, and then 90% of the time it's for the purpose of setting a precedent, interpret the language of a certain law, or, in unusal cases, if due process has not been followed or there are questions about the due process. If you case is accepted to the high court, you present your case and it's a done deal after that. No more appeals, no more winners or loosers.

Couple of notes: Norway does not have a jury system, but instead relies on a Judge and layman judges who are educated in the field of which the defendant is accused. One of the laymen judged in Jon initial trial was Jon Bing, Norway's frontmost export on this issue.
Secondly, a decision handed down from the high court can *technically* be appealed to King Harald of Norway (yes, Norway is a Kingdom). The Kings meets one a week with "his" cabinet including the Prime Minister, where this appeal would then be discussed. This is a rarity and has only happened a handfull of times throughout history, and then only in cases involving issues like national security etc.

Jon's case will more than likely end up in the high court simply to prove a point and test the laws. While Norwegian laws are not binding outside of Norway, it does indeed set a precedent for similar trials in the rest of Europe.

Hope this helps

Double jepardy would NOT have helped...

[Anita Coney]

Some might argue that if Johansen had been tried in the US and won, the prosecution could not have brought an appeal to try him again.

True, however, in the US, with the use of the DMCA, he NEVER would have been found not guilty. Under the DMCA, you cannot argue fair use. It's a strict liability statute. If you break encryption to make a copy you're guilty. It doesn't matter if you were making a copy of your own DVD. You'd be guilty.

The US system might be more fair procedurally, but at least he had a chance to be found not guilty in Norway, which he NEVER had here!

Re:They have no chance.

[Guppy06]

" In Europe you can't buy the judge or impress the jury to get the verdict you wanted."

In Norway, judges are appointed by the king. In the US federal government, they're appointed by the president with the consent of the "states." Not much difference between the two, but I think I prefer the system with some sort of official oversight, especially when the one appointing judges is also the one in charge of law enforcement.

In the US federal government, every citizen has the constitutionally guaranteed right to a trial by a jury of their peers, and they get to haggle with the prosecutor to make the fairest jury possible. There are no jury trials in Norway, with everything decided by the judge. I guess it's just a silly English concept, but again I'd rather go with the side that has oversight, going again back to the way the judge and prosecutor are (at least nominally) working for the same person.

In the United States, once acquitted, the person cannot be tried again for the same crime. Protection from double jeopardy is another legal concept foreign to Norway.

"Old but sane legal system."

Just about any way you cut it, the US legal system is older than Norway's. Denmark more or less gave Norway to Sweden in 1814, and only really became an independent country in 1905. The US federal legal system has been in continuous operation since at least 1789.

Law reporting?

[MacAndrew]

Perhaps submitter "kmitnick" is experienced with criminal law, but the sentence "Jon Johansen will be back in court, tried again in an appeals court, because Hollywood knows better than the Norwegian legal system." makes no sense. The Norwegian legal system is the one prosecuting, appealing, and deciding the case. Hollywood "filed the complaint" -- exactly as it is done in the US -- but doesn't the Norwegian legal system take the blame for heeding it?

The article says, "There is no specific legislation in Norway to protect digital content, but Johansen's program has been criminalized in the United States under the Digital Copyright Millennium Act" -- a strange comment, too. Who cares about the DMCA with Johansen in Norwegian court? Another article [com.com] explained better, "Johansen was accused of violating Norway's computer crime law by helping to create the DeCSS DVD-descrambling utility."

On the double jeopardy angle, I looked around and can't find enough info. I assume that, as in several other countries, the appeals court looks for mistakes of law committed by the judge, not the weight of the evidence. I doubt he would be "tried again in an appeals court," notwithstanding the submitter's implication; it probably goes back to the Norwegian trial court. But who knows. Anyway, American double jeopardy has a surprising number of holes in it, such as the dual sovereignty doctrine that allows reprosecution up to 3 times in state/federal/military courts.

The US has some especially strict criminal rules. Whether Norway's system is a violation of fundamental civil rights is Norway's question, not Hollywood's. To compare Norway's system to, say, the United States, we'd want to weigh all their criminal rules as a batch, plus their discretion and fairness in executing those laws.

Disclaimer, I think this prosecution is a bunch of cr*p, but am totally confused by the reporting as to what's actually happening.

Obviously, IANANL. (Norwegian lawyer.) Be glad to hear from one!

Re:Double Jeopary in Norway

[vidarh]

They've agreed to the full text. In most European countries you are not finally aquitted of anything until the appeals process have been exhausted or neither side files an appeal within a certain short timeframe. You can argue all you want, but it's hardly an accident that the paragraph is worded as it is - under your interpretation it would require major restructuring of the legal systems in a large number of the signatory countries, which simply isn't likely.

The "main trust" of the law is that a defendant should only be subjected to a limited prosecution, and once finally aquitted in a case should not face further trials, allowing the government to use continuous harrassment as a way of punishing without a judgement. Whether that is handled by one, two or three courts (or more for that matter) is vitally different from allowing prosecution to go on and on without limit. It's the latter that the paragraph in question is meant to protect against.

Interestingly, the current British government is considering reducing the double jeopardy protection from US levels to something more in line with what's common elsewhere in Europe. Further, the EU is working on "Corpus Juris" a common criminal code for the entire EU, that in it's current draft incarnation specifically allow the prosecution to appeal an aquittal, in line with most national European criminal codes.

Double jeopardy in the UK and US form is in fact quite rare outside countries that derive their legal system from English common law.

Re:How about getting a perjury conviction?

[Anonymous Coward]

No, he isn't. He was aquitted by the Senate, remember?

On the other hand, 29 serving members of the Reagan government were indeed felons. But you don't get to hear about that...

Re:They have no chance.

[Anonymous Coward]

One of the main effects of this system is cutting down on case law: Whenever there is a problem interpreting a law, you kick the trial upstairs to a higher court that is more skilled in interpretation, instead of burrowing through centuries of previous cases for previous interpretations and trying to twist the case into fitting those.

And as only the supreme court may set precedents, the prosecution must have to have the opportunity to kick it all the way up, if they feel they need one set.

Must read!

[Anonymous Coward]

Some common unknown truth about DeCSS

So, you heard about Jon Johansen, the Creator of DeCSS? A brave soul, which only intent was to help the linux community playing DVDs? And
you know, that the sole reason why he released only a windows version of DeCSS was that Linux didn't supported DVD (or UDF) at that time?

If you believe this (like most people unfortunately), you are wrong.
Jon Johansen is not the hero for open source software as he likes to describe himself lately.
The truth is, he is a liar, a defender of closed source software, ignorant to the GPL and a guy who simply wanted to copy DVDs.

His lies lead most of us to believe that he is a good guy and got him even free a legal team paid by EFF. So you should not wonder that this
guy won't tell you the truth, so i have to.
Some words about me: I was familiar with the development of DVD playback under linux very much from the beginning. I got all the events live, i wrote source for nearly every DVD-related linux
project (including LiVid and the dxr2 driver). I simply know what i'm talking about, because i was involved. But because i'm afraid of flames i won't tell you my name. But i will cite emails
supporting my claims.

In the beginning of DVD on linux we had nothing. CSS involves two steps. First you need to authenticate yourself to the drive, and the drive needs to authenticate to you. Unless you do this, you won't even get the encrypted data from the disc. And then you have to decode the data using the key. Derek Fawcus finally released source for the authentication issue. We were able to read the -encrypted- data from the disc. This wasn't
really helpful, but a first step. Derek released his code under the GPL.

This code was running under linux, we were actually able to read data from DVDs. So much for the lie about the missing linux support for DVDs
at that time. UDF support was already there, but you even won't need UDF for reading DVDs, as DVDs contain a ISO9660 compatible filesystem as well.
Later DoD released their DVD speedripper, a full CSS decoder running under windows.

Shortly after DeCSS was published. Jon Johansen himself announced
DeCSS on the LiVid-Mailinglist:
From: "Jon Johansen"
Subject: [Livid-dev] DeCSS 1.1b has been released
Date: Wed, 6 Oct 1999 06:45:39 +0200
DeCSS is a css decryptor which works with 'the Matrix', something DoD's speed ripper doesn't.

Derek got his hands on the source, and announced this interesting information:
From: Derek Fawcus
Subject: Re: [Livid-dev] DeCSS 1.1b has been released
Date: Wed, 6 Oct 1999 19:49:25 +0100
I've just read through the source to DeCSS, compare CSSauth.cpp to css-auth.c in my authentication package.
The authors have taken it almost verbatim - all they did was remove my copyright header, one block comment, and rename the functions.
I don't mind them using the code - it's out there, but they could have left my name on it.
Interesting this - I only released that file under GPL!

So, DeCSS was a clear break of GPL! So much for a guy who got his legal defense paid by the EFF because he wanted to support Linux...

This incident got the linux dvd people of course upset on Jon Johansen. He was emailed and informed that under the GPL he is obligated to release the source code too. He simply refused that in his response and stated
that linux was a bad os and he wishes it would had never been released(!). So much for a guy who pretends to be a linux supporter.

Date: Thu, 7 Oct 1999 23:36:03 +0200
From: "Jon Johansen"
Subject: Re: [Livid-dev] DeCSS 1.1b has been released
> And: The Open Source model does not work on a "give me that and i
> will give you this" model. You should maybe first find out, what
> the meaning of GPL and the open source idea is, before talking to
> me in such a rude way. If Linus Torvalds has speaked in a way like
> you, Linux wouldn't even exist today.
And about linux and Linus Torvald, I wish that would have happened. FreeBSD is a far superior OS compared to linux.

Jon Johansen later tried to play down this mail:
From: "Jon Johansen"
Subject: [Livid-dev] I am sorry...
Date: Fri, 8 Oct 1999 02:33:57 +0200
And I might have overdone it a bit when I said I didn't care if linux would not have been invented. It's a great OS, but of course not in all ways, but that's how it is with all operating systems.
PS: If I could just get some hollywood plus drivers for linux, I would probably be setting up my own linux machine in the living room :P

So this great supporter of linux, who told you that he didn't released for linux sole for technical reasons (which were proven untrue above)
didn't even had a machine running linux!

Jon Johansen sent some other mails to the LiVid-Mailinglist showing his true attitude toward free software and the GPL:
From: "Jon Johansen"
Subject: Re: [Livid-dev] DeCSS 1.1b has been released
Date: Thu, 7 Oct 1999 20:21:53 +0200
In case you didn't know, WE had already sent the css decryption source to our connection in the linux community. So why don't you just shut up?
That means we have shared with the once who shared with us. You didn't get anything; shouldn't be too hard to figure out why....

So Jon redeclared the GPL. You aren't obligated to publish your modification in the public, you just give them to the original author.
And if you are not nice to him (and give him something), you get nothing.
Nice try.

From: "Jon Johansen"
Subject: Re: [Livid-dev] DeCSS 1.1b has been released
Date: Thu, 7 Oct 1999 23:36:03 +0200
We would never release the source to everyone. It has been released to Derek who knows how to handle it, and when to release which parts of it.
I trust him, and I am sure he will release what's needed, at the most convenient point. If you have trouble with that, then go reverse engineer
css yourself.

Oh, this guy really wanted to help the linux community? How? Releasing binary only module for CSS decoding? Or how should the linux community
use his CSS hack without the source?
That we finally got the DeCSS source despite his plans to not release it, was the result of Jons own mistakes. He left a copy of the source
code public available on his webserver.

From: Ted Milker
Subject: [Livid-dev] DeCSS source
Date: Thu, 07 Oct 1999 18:35:44 -0500
The DeCSS source code is available on the DeCSS homepage at:
http://mmadb.no/hwplus/____MMSystem_275____/D ecss. zip

After this posting Jon fast removed the source code, but i have downloaded it from there (Ted informed me in IRC before he posted this), it was
there. And it contained the GPL code claimed above, with the copyright removed.

So DeCSS was a clear violation of GPL.
Finally the DeCSS source was released after this, because there were no other options left (the source had already leaked, and the GPL required
it).

I hope after reading this summary of authentic emails and my firsthand observations you rethink what you thought about Jon Johansen. He is
not the good guy he likes to describe himself (which helped get free legal advise etc.).
He didn't wanted to support the Linux community, he has used GPL code and broke the GPL himself and after all he has a very bad attitude.

I repeat: I don't think all the legal hassle to Jon regarding DeCSS is good, but he is definitely not the matyr he was made by the public.

cryptus - 2000/11/27

Re:They have no chance.

[Pofy]

>Here is how it works in Sweden, which I suppose
>has a similar system.

But according to the post below it appears the Norwegian system is almost identical.

The second instance typically always take cases. Both sides in a case can appeal regardless of the verdict. So for example if the prosecutor argued for, say, 5 year in prison and the court went with 2, the prosecutor can appeal wanting a longer sentence. The defendant can also appeal wanting a shorter one or perheaps wanting a "not guilty". So you can appeal not only the guilty part but also the actual penalty.

Note that this is NOT making a new case, it is still the old case, it is just redone again in a higher court. If appealed, the ruling of the lower court will not be considered having taken effect.

The same would apply with the highest court, with the exception as stated that it only take cases of prinipal interest, to set precedence and test new laws. Lower courts can NOT set precedence like in for example USA, so you can't use old cases (except from the supreeme court) in your argumentation.

Still you can NOT be charged with the same crime twice. That is once the case is over (in whatever instance it ended up in) the prosecutor can't start a new one again. The only exception is if there is new evidence and circumstances to go with the old ones can not be used again in such a new case which makes it very hard and rare for such situations.

Re:Double Jeopardy

[Pofy]

Actually you can't here either. What basically happens is that if either side is not happy with the verdict, they can kick the same case upwards to the next higher court. One can't initate a new case of the same crime. So basically this is not a new trial it is the same at a higher instance.

The constitution of the court vaies some too based on level. Not fully sure about Norway but in Sweden in the lowest level, you have a judge who is a lawyer, but also a few lay assessors (is that the name? found it in a dictionary) which are ordinary people, not lawyers (it is NOT a jury, they basically work at the court and have many cases). They are supposed to sort of represent the people, common sense and such. In the intermediate level all the judges (which make the decision) are lawyers.

So basically, either side can appeal (twice at most since that ends up in SUpreme Court but usually only once in most cases). But one can't start a new case on the same crime.

Re:Double Jeopardy

[lars_stefan_axelsson]

Because allowing prosecutors to appeal gives the government a way to harass opponents with years of trials and the massive legal fees associated with said trials.

No, not in Norway (or Sweden), because if the government decides to prosecute you they have to pay your legal costs. Not that you can force any lawyer of your choosing to represent you, there's no forced labour in Sweden, but if he's willing to take your case; you don't pay (or rather you pay a share, according to your income if you lose. If you win, you pay nothing).

That's why you in Sweden routinely see "ordinary" criminals in high profile cases, with high profile laywers (that are interested just because it's a high profile case). It's not as if said criminals could actually afford said lawyers.

Some governments might even keep a defendent imprisoned until appeals are exhausted.

Yepp, and if you win your apeal, you'll be roundly compensated by the state for the time you were held. This happens automatically by the state, without any lawsuits. But you can of course apeal the compensation by a lawsuit if you so desire.