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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.
This article makes me glad to live in a country where the government can't try you more than once for the same crime(if found not guilty).
Just imagine if special interest groups could put pressure on politicians to keep appealing cases that they lost. Scary.
Have these people not heard of the words "fair use"?
Good thing. Hopefully this will show that even powerful European Scoflaws can't hope to get away with trampling on the rights of those poor Hollywood executives.
All is right with the world.
Download my free songs!
Prosecutors, on behalf of Hollywood studies, lodged an appeal in the Borgarting appeals court in Oslo
From a google search:
When someone bogarts a joint, he or she is holding onto the marijuana cigarette a bit longer than protocol deems polite
That is, being too damn greedy. How appropriate!
The Motion Picture Association of America, representing major Hollywood studios like Walt Disney Co., Universal Studios and Warner Bros, filed the complaint against Johansen at Norway's Economic Crime Unit.
The group estimates that piracy costs the U.S. motion picture industry $3.0 billion annually in lost sales.
When are the MPAA and the RIAA going to realize that while they may be losing money, is isn't close to that magnitude?
Even if we couldn't download the movies and music, we wouldn't be buying the CDs or DVDs in those numbers. Out of every 100 albums or movies you download (the general "you"), how many would you have bought if you couldn't download them? 10? 5? 1? If it's only 1, or 1% of the movies you download, then that $3.0 billion figure is only $30 million. Which is pennies in a multi-billion dollar industry.
It's amazing how the game isn't "How much money are we losing," but rather "How much money would we have lost in this incredibly unrealistic circumstance?"
One little piece of idiocy I do NOT want this country to adopt.
I'll tell you what the 'effect' is! It's pissing me off!
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.
Its not legal in Norway.
g =E &doc=query&ctry=NOR&llx=02
t ml /117.htm
------------
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?lan
-----------
Protocol 7 from November 1950 is here:
http://conventions.coe.int/treaty/EN/Treaties/h
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.
I say if you buy a CD, you help provide the legal funds to send Jon to jail.
Don't feed the tiger that keeps biting your ass!
Maybe a decision by the high courts of Norway will point the way out of our current copyright monopoly nightmare, though things probably won't improve in the U.S. until Congress stops whoring itself to mass media ("Oh, you need another 100 year extension on that copyright. Just send me a copy of the bill you want (gratuities accepted and appreciated)").
Oh...and Mr. Valenti, you can bite me.
"A microprocessor... is a terrible thing to waste." --
GeneralEmergency
e.g. You're prosecute for LS XYZ in Louisiana, then acquitted, you can then be prosecuted under US ABC in federal court. So yeah, you can experience double jeopardy in the good ole US of A.
From the article:
The group estimates that piracy costs the U.S. motion picture industry $3.0 billion annually in lost sales
I'd honestly like to just take a statistics University Class and have them look over the methodology of it, and get them to report any breaks in logic. Where in god's name did this team get their figures from? How do you measure something like this...
I know it's not in sales drops, because I know that last year MPAA reports that they've had excellent sales lately...
I've never seen any kind of study that actually reports how much piracy is going on around the internet, so I can only really assume that they're going on estimations. Which is ludicrous... that's like counting the number of people in Russia and estimating the world's population based on those results... It's bloody insane!
The only way I think they can possibly justify this amount of money that's being lost is
a) When the MPAA pays money to hire people to do silly estimations like this.
b) When these companies' stock goes down because they lose some court case in which they were trying to sue some guy who wrote a program for ripping DVDs.... not to mention the lawyer costs behind these lawsuits.... how much do you think they put per year into prosecuting people like this?
Would it kill people to think a little critically when reading blind statistics like this?
Karma: Non-Heinous
I have a hard time with the notion that a legal system that allows double jeopardy is "sane." How many times does the Norwegian government get to try to fry Jon? As many as it takes? (Can someone who understands Norway's system provide a real answer to this question?)
"Norway's legal system is different than the U.S.; the government can appeal a loss in a criminal case."
... er... the clothes off his back.
Correct, in America they'd have to file a civil lawsuit once he was found innocent and takeaway his heisman
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.
Rest in peace Malin "looxn" Kristiansen. We miss you...
Does it have anything to do with right and wrong? Or is it just a mechanism used by the powerful to penalize the weaker?
What I am getting it is just what *is* right or wrong? "Justice" just seems to be selective enforcement so that the forces of society can be directed at the weaker party, not the wronged party.Is the wielding of money to any different than the wielding of technology?
No-one is going to be able to pay Jon back for all this frustration he has been pestered with, yet the same force of "American Justice" that is used to pester Jon looks the other way when its the stronger ( financially speaking ) party doing the thing that someone else does not like them to do.
This whole sordid affair to me is just a demonstration of just how "unjust" our system has become. My immediate idea is to determine the resources of both parties - If Jon loses, RIAA gets the resources of Jon, if RIAA loses, Jon gets possession of the assets of those who are bringing on all this pesterance. In a Norwegian Court - as he, after all, *is* a Norwegian citizen. Now, that the element of who has the most money is nulled out, see if they still want to pester Jon.
Personally, I am sick of this whole sordid affair - I can't for the life of me see what Jon did wrong. No more than I would see it that someone figured a way to get my computer to dump its video signal onto a big-screen projector.
"Prove all things; hold fast that which is good." [KJV: I Thessalonians 5:21]
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.
Norway's legal system is different than the U.S.
But protection from double jeopardy is still part of Norwegian law. Read the article to see why this occuring. Before any Merikins start pontificating about our venerated and very good, but also deeply flawed legal system, remember that you can be tried twice for the same charge in the States as well. Hung juries, witness tampering, lawyer misconduct etc. cause subsequent trials to occur. I don't know the statistics on how many 2nd and third trials result in acquittal, but a egg rots when left out in the sun. It is best to not face a jury too often.
If you are acquitted of a crime and subsequently admit that "yes" you actually did it, you can be hauled in for perjury if you attested in court that you did not do it (read this: never testify on your own behalf), and believe you me, if an Attorney General can figure a way to hang a Federal charge on you for the same crime or an attendant one, they will. Sure this isn't exactly the same as double jeopardy, but if you piss off the right/wrong prosecutor, they will get you no matter what. And you will be put on the hardest bitch cellblock in whatever state you live in. All prosecutors have to do to people is threaten them with "Brushy Mountain" here in Tennessee and people fold like lawnchairs. The very protocol for picking prosecutors requires that they keep their hearts in jars buried under fencepost on an uncle's farm. Personally, I wouldn't have it any other way. Criminals need to be pursued and convicted.
Comparing it to Windows will be a moot point, since El Dorado is going to have a 40% larger code base than XP.
It's amazingly disappointing to see governments, previously mandated towards protecting the people, instead going out of their way towards protecting potential profits of major corporations.
The losses screamed about under the dark moniker of piracy are merely missed opportunities for revenue. Are profits down? Yes, but they're still profits, not losses. And just because they're down, Hollywood studios and recording companies think they can enlist the powers-that-be to get them back up.
And sadly, they're right.
You must mean some different Europe from the one I know. The one I know is populated by regular people not saints.
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...
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
Live today, because you never know what tomorrow brings
As an inhabitant of Norway I'd rather see what Hollywood did pay for this 'appeal'. I really don't like crap like this to appear on my next tax-bill. I know that somebody have to pay these lawyers and I'd hate it to be me.
Look at this BS:
Norwegian Teenager to Face Retrial for Film Piracy
Calling what Jon did "piracy" is a bit of a stretch isn't it? He wrote a program that reads the format of DVDs. Amazing that a news organization would use this expression.
acquitted by an Oslo court in January of charges of theft
No shit! Since there was no "theft", not even Mickey-Mouse Monopoly Money Copyright "theft"!
The group estimates that piracy costs the U.S. motion picture industry $3.0 billion annually in lost sales.
What does this have to do with Jon? How much did Jon lose from this stupid case, which has nothing to do with the MPAA's imaginary loses?
Johansen has become a symbol for hackers worldwide who say making software such as his -- called DeCSS -- is an act of intellectual freedom rather than theft.
Uh, hello, WRITING SOFTWARE is an act of creation, not of theft. Can't these people read the illogical statements they write?
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.
What, you mean Norway doesn't have copyright law? Yeah right. Laws like the DMCA don't protect *content* they protect *access methods* which "protect" content. They are "paracopyright" laws like one author has written.
I wish they would write the story and tell the truth: DVD-Jon wrote a program that lets you load DVDs into your computer. THAT'S ALL.
The evolution of Piracy:
What's next on the list I wonder?? Piracy == the crime of not preventing copyright infringement when you see it happening. Or maybe Piracy == not buying the latest Britnee CD.
FUCK I can't wait for this copyright nonesense to sort itself out.
(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
As a prosecutor, I have no problem with the *general* lack of ability to appeal. There are limited circumstances in which we do get another bite, but it requires special circumstances. For me, trials are fun, but for a criminal defendant the uncertainty, the court appearances, and the stigma must be quite unpleasant. I don't think I'd like to be part of a process which just beats a defendant down with government appeals until he's all out of fight, money, or both.
With the resources available to us, we (the State) can usually convict the guilty if we do our jobs right. Sometimes they get away, but that's how our justice system is set up -- the Framers wanted to have a system where we risk a few guilty individuals going free, but we minimize the risk of convicting the innocent.
In France, I believe, there is no Miranda as we know it. The police can question a suspect for 48 hours with no right to counsel. It would make my job easier, but it doesn't make it a system that I want to live under or be a part of. If it works in Norway, that's their business, but we don't need to pick up all of the bad habits of the "Old Country," just because it works for them.
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!
If someone says he and his monkey have nothing to hide, they almost certainly do.
" 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.
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 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!
So the firmly rooted conviction among many Americans that their system gives better protection to the accused ... seems very misguided
The problem isn't the protection not given to the accused, but the fact that we have made the most trivial of unsocial acts into felonies. Take the narcotics offenders, prostitutes, check kiters, etc, out of prison and we'll be on parity with most of Europe. We do have a problem here, but it has to do with the laws and the enforcement of laws, and not the legal system itself.
So why do we have this problem? Just take a look at Slashdot. How many times have you seen a Slashdot poster suggest that justice is corrupted because Bill Gates and Steve Ballmer are not in prison? Have you ever secretly wished that? Yet they have not committed any felonies (check the laws, they haven't). There are some here that would wish every officer of every corporation, as well as every proprietary software developer, to be sent to jail. This kind of attitude is dangerous, and it isn't limited to the US.
If I were to hazard a guess as to why this attitude is more of a problem in the US than in Europe, I would say it's because of the US two party "winner takes all" system, which encourages pandering to the whim of the public. Most most European nations have parliamentary systems where the winners must share the "spoils" of power.
A Government Is a Body of People, Usually Notably Ungoverned
We /.ers are one of, if not the most connected community on earth. We have, what, 375,000 people who read /. every day and come from just about every nation in the world? Why then do we not take a page from actual grass roots groups and become a proactive in writing to law makers to change this garbage?
/. community. Maybe we can stop just complaining and start trying to fix these laws.
For now take a look at this letter writing guide. Over the weekend I will post a new one specific to the
>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.