Edward Welbourne | 2 Dec 17:01 2003

Re: Jon Johansen Retrial Begins in Oslo Appeals Court

> Jon Johansen Retrial Begins in Oslo Appeals Court

and - would you believe it ? - CDR had an observer on the premises ;^>
I could only be there for the first few hours this time, though; we met
a dead-line last night and I needed to be on hand for any fall-out (bugs
found overnight, etc.), albeit there were none in fact and my last fix
really did fix the bug I couldn't test (which was a relief) - but I had
no way to know that 'til I got in to work !

My Norwegian has improved (bare en litte) since last year
but still isn't terribly good, so similar caveats apply (though, at
least, this time I'm not hovering, ill, on the boundary of
consciousness).  I'll *try* to avoid repeating too much of what I said
about the first trial, but don't grumble if I do.

[Note to anyone thinking of forwarding this anywhere: use of non-ASCII
characters messed up the politecbot forwarding someone did last year;
it'd be *much* tidier to send the link to where this appears in the CDR
archive, rather than forwarding this itself; go to
or to Julian's post, to which this is a reply,
and find this down-thread of it; send the URL - or Julian's !]

The prosecution had the same team as before, the defence merely lacked
the assistant they didn't use last time.  Because this is an appeal (and
it's all about setting a precedent, so taken seriously) they have a
higher court.  It's on the eighth floor (room 828), where last year's
was on the first.  Instead of last time's one lawyerly judge and two
non-lawyer experts in the relevant field as assistant judges, this time
they had three judges in lawyerly robes - all looking far more like the
usual stereotype of magisterial (sigh) - and four civilians; at least
two of whom appeared to be technical experts (I don't know what the
other two are).

During the trial's preamble, the chief magistrate read out a list of the
witnesses in what appeared to be a neutrality check, to which one of the
techies (Dag Asheim, I think) had to ack that several of the witnesses
were folk he knows (I knew I recognised his face - subsequently I find
he's a security consultant who came to give us a talk at work a bit over
a year ago).  This clearly wasn't a problem; the acks included that he
*used* to work for Økokrim, the prosecution, and (if I didn't
misunderstand) is friends with Håkon Wium Lie, who is very much on our
side; so he clearly spans the spectrum - hard for the court to avoid, as
it's going to have a hard time finding Norwegians who understand the
case and *aren't* familiar with the players and witnesses !

Participants all had a pair of big blue A4 evidence binders packed with
documents; by eye I'd say they had 5 or 6 inches of A4 between the two
folders.  From what I understood, those are pretty much the same folders
as were in use last year, complete with lots of logs of e-mail and irc
chats between Jon and others involved in the birth of DeCSS.  I would
hazard a guess that last winter's witness' statements have been added.

The prosecutor, again, did most of the talking; leaving at lunch-time
meant that I didn't get to hear the defence's responses.  She told us
(all over again) about what CSS is, what Macrovision is, what DVDs are
and how, because they're digital, copies are essentially perfect, unlike
video tape with its generational degradation.  In short, the reasons why
Big Publishing's business model is f*cked beyond recognition were made
nice and plain, except that CSS was presented as "the solution" rather
than "a land-grab disguised as a desperate, and unworkable, attempt at
solving the problem".  But no surprise there, or in hearing about the
(irrelevant, because it only applies to those who've signed up to it)
license terms under which the DVD-CCA allows businesses to join the
player cartel.

One very noticable contrast with last time is that the prosecutor was no
longer treating it is inevitable that the court would come down on her
side against the naughty boy opposite - indeed, with a nice clear
acquital staring her in the face, she was visibly on the defensive in
some respects, and acutely aware that she had to make a real case.

It was particularly delicious to hear her explain that decryption and
copying are quite separate activities; and we got a full repeat of last
time's demo of copying files off the Matrix DVD, first using standard MS
file copying, then using DeCSS.  [So the prosecution, in court, violated
copyright twice, unless Norway's fair use exceptions apply, or she had
the publisher's permission.]  So it's nice and plain that CSS does *not*
inhibit the making of *copies* (the thing the law restricts - and the
law doesn't care whether they're *useful* or not, only that they're
copies), it merely inhibits the *play-back* of any copies to which one
may have (lawful or otherwise) access.  Thus DeCSS is a play-back tool
that happens not to abide by the artificial restrictions in the DVD-CCA
license (by which it isn't bound); it's not a circumvention device
against a copy-protection system.  It was particularly tasty to watch
the prosecution present all the evidence for this.

From what I can see, the prosecution has nothing new to add to the
evidence that totally failed to sway last winter's court, so I don't
see much scope for the court to reach a different conclusion.
We can at least hope sanity will prevail again,