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"DVD-Jon" Faces Retrial
An anonymous reader submits: "Norway's special division for white-collar crimes, Økokrim, has decided to appeal the acquittal of 19-year-old Jon Lech Johansen, accused of copyright violation for helping bypass DVD code protection, web site Nettavisen reports."
As a Norwegian I'm a bit surprised that Økokrim appealed the sentence. It's normal for prosecution to appeal, but in this case it was a pretty clear acquittal. However the background for the appeal is (as the article states) not ready yet.
However my concerne now is that if the appeal goes through (I believe that - in Norway - most appeals at this level do) it will be tried in front of a jury, which means this case can be on hold for ever. In the previous instance they had trouble finding only 2 laymen who could understand the technicalities of the case.
Look a monkey!
It is not considered Double Jeopardy, it is only an appeal...
1) You cannot be tried for the *same* crime twice, however, prosecutors can amend or change the crimes in which you are being tried for ie: you are no longer tried for the murder of Joe, just maybe a nice inditement of manslaughter.
2)Double Jeopardy doesn't count on appeal. Normally the losing side can appeal if there was a trial error or they want to fight a ruling the judge made on a point in the trial (including evidence that shouldn't have been, allowing a surprise witness - a procedural error).
3) Unlike the Movie - you CAN'T be tried and convicted for killing someone (for instance) and then actually kill them. Those are actually TWO separate crimes. Makes for a good movie, but the law isn't paid attention to. That's where you just have to sue the state for negligence, or whatever fancy scheme you can get your lawyer to concoct.
Party?!? What kind of party is this? Where's the damn keg?
Virtus Junxit Mors Non Separabit
"DVD-Jon" faces retrial Norway's special division for white-collar crimes, Økokrim, has decided to appeal the acquittal of 19-year-old Jon Lech Johansen, accused of copyright violation for helping bypass DVD code protection, web site Nettavisen reports. Johansen was acquitted on all counts of piracy and distribution of the code-breaking program. Johansen has argued that his programming work was designed to play DVDs, which he purchased, on a computer with the Linux operating system, something the copy protection would not allow. The head of Økokrim's computer crimes division said that the reasons for the appeal would be in their offices Monday afternoon. Johansen's counsel, Halvor Manshaus, said he was not surprised by Økokrim's decision. "There were signals from Økokrim quite early, that they would appeal and that they see this case as dealign with an important principle. We believe that the first verdict was extremely thorough, but that doesn't prevent them from appealing," Manshaus told Nettavisen. Aftenposten English Web Desk
They didn't. They were invaded by the German army.
You are completely, totally incorrect. No matter how much new evidence is found -- even if you confess on the way out of court -- once you are acquitted, you can NEVER be retried by the same sovereign.
As you say, a second sovereign -- e.g., the federal government, after a state trial -- can try you separately, whether or not you are acquited in the first trial, without violating double jeopardy, but many states' laws still would prevent them from being the second trial. In copyright cases, though, this is irrelevant, since states can't enforce copyright laws (as defined in federal law).
Yes, IAAL.
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Nay! The accused is protected from double jeapardy on any given charge -- Double jeapardy has nothing to do with appeals.
Not sure about the legal system in Norway, but in the U.S. and Canada, appeals must be based on possible mistakes of law or mixed fact/law at the trial level. This can result in a different verdict, or in a trial de novo. The intention, however, is not usually to retry the case. Rulings regarding fact usually remain intact from the trial level, unless there has been some obvious gross error.
Seriously, what's so strange about it? If trial judges can make mistakes of law in favour of the prosecution, they wouldn't occasionally do the same in favour of the accused? And shouldn't the justice system be able to say: hold on! That piece of evidence should have been admitted (or whatever the alleged mistake was)
I know nothing about non-U.S. legal systems, and hopefully somebody who knows about Norwegian jurisprudence will answer, but the general principle behind appeals in legal systems is this:
The first court that tries you is the finder of fact. Unless that whole trial is thrown out (and you get a new one), the facts determined in that trial are beyond question in the process. However, the court has to apply rules to the process of the trial and to the facts that come out, in order to get an outcome. Those rules can be both formal laws and legal procedures. (In real life, the line between facts and rules gets blurred, which both sides try to use to their advantage, but that's a different topic.)
Appeals apply to these rules, not the facts. So an appeal isn't just a second chance to start over and get a different trial outcome. It is a challenge that the process in the previous trial was in violation of those rules in some very specific way. (Or, many specific ways, since most appeals are a laundry list of possible violations, hoping the appeals court will find at least one they like.)
This is true already in the U.S. when those found guilty appeal their convictions, or when either party in a civil trial appeals the outcome. This is why appeals often force the original trial to be thrown out: they clarify the application of a rule as it applies to this case, then you have to start over and apply that rule correctly this time.
There's no reason in principle that this couldn't be applied to appealing acquitals as well. In principle, if somebody is acquitted because a judge made a mistake in applying a rule about admissibility of evidence or jury instructions, it might be reasonable to say that the acquital was flawed, and is contrary to justice, and shouldn't be honored.
There's a question of rights, which is a big one. There's also a questions of "That's not how we do it in the U.S.!!!!", which, if it isn't backed up with something else, isn't much of an argument. But I'm just speaking to the principle of appeals in general terms.
IANAL, yadda.
Well, you're batting .333. I guess that's good enough for "informative."
1) You cannot be tried for the *same* crime twice, however, prosecutors can amend or change the crimes in which you are being tried for ie: you are no longer tried for the murder of Joe, just maybe a nice inditement of manslaughter.
Wrong. Since the facts needed to prove murder are sufficient to prove manslaughter, this prosecution would indeed violate double jeopardy. The second charge needn't be identical to the first.
2)Double Jeopardy doesn't count on appeal. Normally the losing side can appeal if there was a trial error or they want to fight a ruling the judge made on a point in the trial (including evidence that shouldn't have been, allowing a surprise witness - a procedural error).
Wrong again. Once jeopardy has "attached" -- the swearing of the jury, or of the first witness in a bench trial -- the prosecution cannot appeal. Again, it makes no difference how profound the alleged errors are. In a well-known case, the judge dismissed the charges because he wrongly believed the prosecution had done something unethical, which the judge didn't even have jurisdiction to do; but a retrial was barred nevertheless.
OT, but "allowing a surprise witness" would not typically be reversible error in any case.
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That a product, program, or any tool for that matter, can be used to circumvent the law or do ill, does that mean that the tool is evil? Hardly. A tool is neither good nor bad, so long as it performs the task it was designed for in an adequate manner. Those kind of value judgements must be reserved for the person that employs that tool...
Is a gun inherently evil? Sure, there are many that use it for malicious purposes, but what about when the gun is in the lands of a legitimate authority? What about when it is in the hands of a potential rape victim?
Prosecute the Pirates. Prosecute the thieves. Don't buy materials from questionable sources. I'm not one of those people that thinks the "Industry" has no right to make a dollar. Still, the tool is not the problem. It is the people that choose to misuse it.
I don't think it is the company's right to determine how I use their product. If I have paid the same $22.00 for a DVD as my Windows using counterpart, how am I causing harm to Hollywood by viewing the movie on my own Linux running system? Have I hurt their revenue? Did I steal their intellectual property? Does my use of Linux automatically mean that I will decrypt their DVD, and spread it across the Internet free of charge?
What is the difference?
If anything, the movie industry should be going out of their way to put as many DVD players out there in the world as possible. They should have authored their own Linux DVD software, because it is beneficial to them to do so. The more players in existance, the more movies they are likely to sell. This seems evident to anyone with even a cursory understanding of economics.
Short of producing such a software player themselves, they certainly shouldn't mind that someone else has saved them the trouble.
The piracy issue is a strawman arguement. DeCSS doesn't make a DVD any more "pirateable." You needn't break the encryption in order to take a single DVD, and duplicate it. You can produce duplicates without even attempting to decrypt the software, simply by making a bit-for-bit copy.
What DeCSS does allow for is the conversion from one format to another... It allows you to take a DVD, and from it, procude VCDs, etc. That's hardly a threat though. They are lower density, and lower resolution. Nobody would rather have a VCD than the corresponding DVD. In any event, VCD production poses the most minor of threats to the revenue streams of the movie industry.
In any event, this is definately a new reason not to move to Norway. I had no idea that "Double Jeopardy" protection wasn't commonplace in most of the "Free" world.
For those that would die defending it, Freedom
has a sweet taste that the protected will never know.
Look, son, I'll tell you what a wise man once told me: There's no shame in not knowing the law, but you still don't need to proclaim it to the world, see?
In the U.S., Double jeopardy absolutely bars prosecution appeals. Totally and completely. That's why you never hear about them, or see them in movies: they don't exist.
That's right. Even if the judge totally screws up. Whether it's law or fact. (And, for that matter, defendants are free to appeal decisions of fact; they just face a higher burden of persuasion.)
Now, why don't you wait until we're discussing something you know something about for your next post, huh?
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That would be quite an achievement - considering the fact, that Norway isn't a member of the EU.
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