Wrongful beyond borders?

-- By KristofferRakner - 3 Nov 2016

I. Introduction

After Universal City,(1) the Norwegian court system was faced with a similar fact pattern. Due to his role in creating DeCSS? Johansen was indicted for wrongfully gaining access to data by breaching a protective measure and causing damage. Johansen's involvement in creating DeCSS? is described in the American court proceedings.(2) His involvement did go further than the actions of the defendants in _Universal City, but did also include some of the same actions. Borgarting was therefore also partially faced with the question of criminal liability for similar conduct as the (civil) defendants in Universal City.

Johansen was acquitted by the Oslo City Court.(3) The government appealed to Borgarting Appeal Court ("Borgarting") which in its verdict December 22, 2003 affirmed the acquittal, holding that the breach of the protective measure was not wrongful.(4)

The two legal systems are in agreement that the DeCSS? effectively circumvents the DVD-software encryption. However, they differ in the assessment of circumventions wrongfulness. This paper will present and point to differences in the reasoning in the court decisions.

II. The justifications

A. The right to make a copy

Borgarting stated that since Johansen had purchased the DVDs he had a right to play them and to decrypt the DVDs in the process. Borgarting discussed whether the fact that DeCSS? allowed the movies to be digitally stored on Johansen's hard drive made Johansens conduct wrongful. Borgarting held that the Norwegian Copyright Act (the "NCA") gave the DVD's legitimate owner a right to make a copy of the movie on his hard drive because, unlike books, the DVD-format was particularly vulnerable to damage. The same argument seems far from being acceptable as a key argument under the Copyright Act § 1201(a)(2). The New York district court also seems to draw an immediate line between the decryption and an illegal distribution of the DVD-content.(5)

Even as the New York district court addressed the fair use-question, a persons right to make a copy of a DVD the person legally owns seems not to play a part in the discussion.(6) However, based on the view the district court took on the fair use argument, it seems unlikely that the argument would have had any traction. The Second Circuit on the other hand explicitly rejects the argument based on a reading of Section 1201(a)(3)(A). (7) Borgarting's approach seems more in line with _Sony Corp. v Universal City Studios, Inc., 464 U.S. 417, which was explicitly distinguished by the New York district court.(8)

B. Reverse engineering

Borgarting noted that the NCA gave a right to access computer code to develop interaction between programs, provided the person had right to use the program. The New York district court recognized similar rights, but was deemed inapplicable because the defendants had not reversed engineered the program themselves. However, the New York district court went further, stating that it would not matter if they the defendant had authored DeCSS? because the right to disseminate the information was limited to the sole purpose of achieving interoperability and such purpose, is stated, was not proven.

The difference between the courts on this point may possibly be explained by difference in evidentiary requirements in civil and criminal cases.

C. The Linux argument

Discussing contributory liability, Borgarting noted that Johansen intent by publishing DeCSS? was to contribute to the effort of making a DVD-program for Linux. It held that even if Johansen knew that the program could be abused he had no intent to contribute to illegal copying. The court referred to legal literature that stated that if a commodity serves a legal purpose the distribution of the commodity is legal as a principle, and the opposite would have to be argued for. Borgarting seems to be more open to what the New York district court referred to as the "Linux Argument".(9) The New York district court seemingly rejected that the fact that the DeCSS? was developed to "further the development of a DVD-player that would run" on Linux was a relevant argument. However, note that Borgarting strictly speaking discussed the matter in relation to Johnansen's intent, not in relation to a question of legality or wrongfulness per se.

D. Free Speech

As the Constitution of the United States, the Norwegian Constitution also gives it's citizens the right to free speech.(10) The most notable difference between the two legal systems, so far as they are represented by the two court proceedings, is the difference in the general approach when it comes to the free speech. While a substantial room is devoted to the question in the American court proceedings,(11) the issue is not even mentioned by Borgarting, or the Oslo City Trial Court in the preceding acquittal.

It could be argued that if Borgarting viewed free speech to support its findings, it would have raised the issue. Such an argument borders however on speculation. The most reasonable explanations for the difference may be that the issue was not raised or that the court did not need to broach the issue because it found grounds for acquittal without addressing the principle issue. The judgement from Borgarting cannot be viewed as cutting before or against the free speech argument relating to code.

III. Conclusion

Read as a whole the main difference between the two approaches is Borgarting's seemingly narrow approach to the issues, as it consistently focus on Johansen's acts instead of the implications his action could have for illegal copying. This stands in contrast to the more principal, general approach seemingly adopted by the American courts. However, the differences may be attributable to the difference in the two proceedings posture, in that the Norwegian proceedings were criminal and the American proceedings were civil. Thus, the difference between the proceedings is not necessarily attributable to a difference between the perception of the wrongfulness of the development of DeCSS? .

No, the difference is that the statutes involved are completely different, having both different purposes and different operative provisions. The best route to improvement is to replace this unfounded speculation about procedural differences with a discussion of the DMCA anti-circumvention provision.

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Notes

1 : Universal City Studios v. Corley, 273 F.3d 429 (2d Cir. 2001); Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000)

2 : Universal City Studios v. Corley, 273 F.3d at 437 ff.; Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d at 312.

3 : Oslo City Court verdict January 7, 2003, TOSLO-2002-507

4 : RG-2004-414

5 : Reimerdes, at 318-319

6 : Reimerdes, at 321 ff.

7 : Corley, at 444

8 : Reimerdes, at 323

9 : Reimerdes, at 319

10 : The Constitution of the Kingdom of Norway of May 17, 1814 § 100

11 : Corley, at 434 and at 445 ff.; Reimerdes, at 325 ff.

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