A Legal Perspective on the Norwegian DeCSS Case

Prof. Jon Bing (U. of Oslo, Norwegian Research Center for Computers and Law)

Jan. 25, 2000

The Norwegian 16-year-old Jon Lech Johansen has been charged by the prosecutor (the special division of the central proceutor's office for economic crimes, which has a unit for computer-related crime) for two possible violations of Norwegian law. He has not been indicted, and the incident is under investigation after notification of US rights-holders.

According to the media, there are two causes for the charge.

The first is the Norwegian Criminal Code sect. 145(2). This is a "classic" hacker provision, making it illegal to "break a security arrangement" (the translation comes over as rather inelegant) to access data. It was drafted to address a situation where a hacker breaks the security of a third-party database or computer system, by any means. The language is very general, and was originally drafted to include any attack on third party computers. It is integrated into a clause containing the traditional prohibition of opening or breaking the seal of another's letter.

The provision has been subject to litigation. In one leading Norwegian Supreme Court case, the provision was not applied to a person using "piracy decoders" to access encrypted pay television. The Court argued that "data" did not include television programs. This decision is heavily criticised in legal literature, but has been upheld in a later case, and this can now be taken to be the interpretation in law. Also, an amendment has introduced a special provision for accessing encrypted broadcast by unlawful means (Sect 262).

In the case of Mr. Johansen, the security of a compact disc owned by him was broken. It is not settled in Norwegian law whether the Criminal Code sect 145(2) applies in such a case. Certainly it falls outside the typical situation for which the provision was originally drafted. Also, as indicated, the Supreme Court has shown some caution in the interpretation of the provision. Under the general doctrine of Norwegian criminal law, criminal provisions are not interpreted to include analogous cases falling outside the natural meaning of the provision in question.

It is therefore unsettled whether the Criminal Code sect 145(2) can apply to a situation where someone breaks a code or other security measure in order to access material on a device of which that person is the owner. The question is, in academic legal terms, "interesting", and one may argue that the uncertainty itself may be something which one would like to settle through a test case.

The second cause is infringement of copyright law: Norwegian Copyright Act sect. 54. Under Norwegian copyright law, the rights-holder has an exclusive right to make the work "available to the public" through the distribution of copies, through public performance (including the performance of a film on screen or by broadcast), and by public exhibition (like a painting in a gallery). One may note that though US and Norwegian (European) copyright law in general terms are very similar, there are detailed and technical differences that may be pertinent in this case.

According to the media, the prosecutor is exploring whether the actions of Mr. Johansen are a contribution to distribution of copies without the consent of the rights-holder. The argument would seem to be that the posting of programs and codes on the Internet make it possible for third parties to copy protected film works, and therefore this action is contributory to an illegal distribution. Therefore, it is not the breaking of the codes or the development (possibly copying) of the program in question on which the prosecutor at this stage is focusing, but contributory infringement of the copyright.

This issue has not been before Norwegian courts before, but could, perhaps, be related to linking to illegal MP3 files. Cases with respect to the latter has been tested before Swedish courts (with acquittal as result), and are also under investigation in Norway.

Jon Bing is a Norwegian attorney with the law firm Bing & Partners, a full professor at the Norwegian Research Center for Computers and Law (Institutt for rettsinformatikk), a Department of the Faculty of Law (Det juridisk fakultet), University of Oslo (a department he co-founded in 1970) and currently Visiting Professor at King's College, London.

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