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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."
...if at first you don't succeed: trial, trial again.
He (the defense) says it was intended simply to allow playing of DVDs under Linux. Seems quite reasonable. How can he be faulted for this? Perhaps they would have preferred that he also build in the same security mechanisms as other DVD players, but these, of course, would be easily defeated, assuming the code is open source. I guess I don't see a lot of details in the article, or I'm missing some of it. Would the prosecution suggest that any open source DVD player is illegal?
Good luck contestants...
I was very surprised to see that they are actually going to appeal and aquittal for this kid. You don't see this in the US since such an appeal is not allowed under the Constitution. In the US, sometimes prosecutors try charging the person with another crime that was related to the original one but that doesn't work very often. For instance, after the LA cops were aquitted of beating Rodney King, the US District Attorney's office stepped up and charged the cops with violating King's civil rights. I don't remember if they were convicted or if they settled, but the cops did do jail time. But that's just an example of how things are done here.
There is nothing inherently safe about liberty. That's why so many people died protecting it.
How does it work in legal systems in general? Usually it seems to me that the defendant does the appealing if they are found guilty etc. It seems unfair that the government can just keep attempting to prosecute the same person over and over. What about the effect on their lives? And couldn't the defendant point to the old trial - I mean if a judge already found you not guilty is that enough to create a reasonable doubt? It's kind of scary, guess I just never thought of it before - say for example, you beat Microsoft, defending yourself in some sort of trial - if MS remains PO'd with you could they not just keep appealing forcing you to return to court again and again? Until finally you are completely broke and your life is ruined and whatever you were defending against is completely irrelevant.
It may be completely different in his country anyways...
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!
Lars: Sven, we hate thees job, yah?
Sven: Yah.
Lars: Always giving trooble to the dirty accountants and such, yah?
Sven: Yah. Lars, eets very boring.
Lars: So Sven, lets go after thees kid, Jon Lech Johansen. He ees famous, does theengs with compooters.
Sven: Yah. We cood be on T.V.
Lars: Yah. Famoos.
- For the complete works of Shakespeare: cat
This case perfectly highlights a legimate use for breaking copy protection, to play your own DVDs on an OS that the copy protection doesn't like. As for distributing, I'm sure other people wish to do it as well. Time to stop outlawing things with legit use just because of the potential for illegal use. What's next, outlawing baseball bats because I can beat people to death with one? I hope this case gets more attention in the US so people can see this.
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
I believe there are ways around this even in the US -- the prosecution can ask to have the original trial declared a mistrial if they can show that the original trial was conducted improperly, or some such. And of course there's always the possibility of trying people for different charges relating to the same crime, as in the Federal civil rights trial of the cops in the Rodney King case after they were acquitted of State assault charges. The Norwegian deal might be something like one of these two -- the article certainly didn't give much detail. Anyone who knows more, please feel free to correct me.
The real lesson here, I think, is that The Forces Of Evil never rest in their attempts to persecute hackers for actions that should not, by any sane measure, be crimes at all. This is apparently no less true in Norway than anywhere else.
The correlation between ignorance of statistics and using "correlation is not causation" as an argument is close to 1.
"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
It seems like Norwegian authorities are trying to make Johansen a cybercrime posterboy as the US did to Mitnick.
Trolling is a art,
They didn't. They were invaded by the German army.
Yes, in Norway, as in some other European countries, prosecutors can appeal a finding of innocence.
This would not be permitted where there is protection from double jeopardy, such as afforded by the Magna Carta or the Bill of Rights.
No. Bitwise copying is for piracy; DeCSS is really, really, really, REALLY crap for piracy. It's for playback.
No matter how many times "the man" says DeCSS is for piracy, it just isn't true. DeCCS is to copying what roller skates are to theft: it is possible that you could find someone trying it but it's a useless way to go about it.
Plus, in most countries CSS itself is actually an illegal proce-fixing mechanism backed by an equally illegal cartel.
TWW
"Encyclopedia" is to "Wikipedia" what "Library" is to "Some people at a bus stop"
from the article:
The head of Økokrim's computer crimes division said that the reasons for the appeal would be in their offices Monday afternoon.
I guess they had a meeting with the MPAA today?
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.
I Can't Believe It's A Law Firm, LLP does not necessarily endorse the contents of this message.
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)
the prosecution can ask to have the original trial declared a mistrial if they can show that the original trial was conducted improperly
Not after the verdict is in. Then, jeopardy is attached.
Jeez, don't you ever watch "Law and Order"?
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.
The Supreme Court ruled that it does not violate the double jeopardy clause of the 5th Amendment to try someone at both the state and federal level. It's hard to imagine how they managed to interpret it that way. You can read some about it here. I don't agree with the logic. The Supreme Court seems to be focused on the violation of 'laws', whereas the language in the Bill of Rights is 'for the same offense'. I'd take that to mean that you do one bad thing, you can only be put in jeopardy for it once. If you shoot two people, you've committed two crimes. But in another violation of the 5th amendment, you'll be charged with two counts of murder, possession of an unlicensed firearm, possession of a firearm with intent to cause harm, assault with a deadly weapon, unlawful discharge of a firearm, conspiracy to commit murder, and so on. In fact, the Supreme Court specifically contramands such separate charges unless Congress uses "language which is clear and definite", which to me implies the creation of a judicial mandate to decide the applicability of the 5th amendment.
Actually this is not the same as in the US, I know because we have the same law in Denmark. Basically any result of a lower court can be appealed to a higher court granted that the higher court wishes to take the case.
We had a case of a man who was first acquited by a city court then found guilty by a national court. But he fled to England and now can't be extradicted, because according to a brittish law, you can't be tried for same crime twice. (in america this is called double jepardy)
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.
I Can't Believe It's A Law Firm, LLP does not necessarily endorse the contents of this message.
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.
So do web sites, FTP, and email. Shall we make it illegal to write web browsers too?
many people do use it to break the encryption scheme so they can rip and distribute movies. Is this necessarily what we want? If movie companies don't get paid for there work they'll stop making movies, blahda blahda
I'd much rather live in a world with fewer movies than in a world where Hollywood is allowed to dictate what programs I can write or use on my own computer.
Additionally, while this is not a popular idea around here, isn't it the companies right to decide that they only want their disks to play on windows systems?
Companies have every right to decide what is done with their property. However, once they sell a disk to me, it becomes my property, and at that point it should be up to me (and only me) how I use it.
I don't see anyone saying that people should be allowed to hack popular windows only games to run on liniux, so why should movies be different?
There is no argument about that because everybody agrees that it should be allowed. Products such as WineX and VMWare allow you to play windows-only games under Linux.
I don't care if it's 90,000 hectares. That lake was not my doing.
No, he's guilty of creating a tool that could possibly be used for stealing, but doesn't necessarily have to be used for stealing.
It's more like he's being prosecuted for having invented the crowbar. Suppose all shipments within a country or countries come in boxes that require you to purchase an ACME-brand "crate opener" for you to retrieve your shipped items. However, ACME doesn't provide their brand-named crate-opener in your neck of the woods. You decide that since you bought the crate yourself, you are entitled to the contents. So you invent the crowbar and pry the crate open to reap the sweet sweet goods inside.
But now you've bypassed the purpose of ACME-brand crate-openers, so ACME prosecutes you. They claim that since you can now use your crowbar to open crates that you didn't buy, you are thus guilty of theft.
The whole question really boils down to whether you are entitled to open the crate that you have purchased. And is having possession a tool that MIGHT be used for stealing illegal?
Crowbars can be used to smash windows, pry open doors and crates not belonging to you, and all other sorts of nasty stuff. But they do have legitimate and legal purpose. So, is it illegal for me to possess a crowbar since it can make stealing much easer? Would it have been illegal for me to invent the crowbar (mostly a trivial invention, but still)?
This case is not just a simple black/white issue of stealing.
make world, not war
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?
I Can't Believe It's A Law Firm, LLP does not necessarily endorse the contents of this message.
That would be quite an achievement - considering the fact, that Norway isn't a member of the EU.
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