EFFector Vol. 15, No. 1 Jan. 10, 2002 editors@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
EFFector Vol. 15, No. 1 Jan. 10, 2002 editors@eff.org
A Publication of the Electronic Frontier Foundation ISSN 1062-9424
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Oslo, Norway - Acting years after pressure from the U.S. entertainment industry, the Norwegian government yesterday indicted teenager Jon Johansen for his role in creating software that permits DVD owners to view DVDs on players that are not approved by the entertainment industry.
On January 9, 2002, the Norwegian Economic Crime Unit (ØKOKRIM) charged Jon Johansen for creating software called DeCSS in 1999 when he was 15 years old.
"Johansen shouldn't be prosecuted for breaking into his own property," said Robin Gross, staff attorney at the Electronic Frontier Foundation (EFF). "Jon simply wanted to view his own DVDs on his Linux machine."
"Although prosecutors in Norway failed to defend the rights of their citizens against Hollywood's unprecedented demands, we are confident that neither the Norwegian people nor their justice system will allow this charge to stand," added EFF Legal Director Cindy Cohn. "The movie studios have used intellectual property rights to silence scientists, and censor journalists. Now, they are declaring war on their customers."
Johansen's indictment comes more than two years after the Motion Picture Association of America (MPAA) initally contacted ØKOKRIM prosecutors to request a criminal investigation of the Norwegian teen and his father, Per Johansen, who owned the equipment on which the DeCSS software was posted.
Johansen originally published DeCSS as part of the open source development project LiVid (Linux Video) in building a DVD player for the Linux operating system. The MPAA CSS licensing entity, named DVD-CCA, refuses to license CSS to projects such as LiVid, which is an open source project collaborating on the Web to build interoperable software tools. LiVid's independently created DVD player software would compete with the movie studio monopoly on DVD players while offering more consumer friendly features.
DeCSS also enables people to exercise their fair use rights with DVD movies, like fast-forwarding through commercials or copying for educational purposes.
In January 2000, Johansen won the prestigious "Karoline Prize" for his DeCSS software innovation. This national prize is awarded yearly to a Norwegian high school student with excellent grades who makes a significant contribution to society outside of school.
ØKOKRIM Chief Prosecutor Inger Marie Sunde indicted Johansen, who recently turned 18, for violating Norwegian Criminal Code section 145(2), which outlaws breaking into another person's locked property to gain access to data that one is not entitled to access.
Johansen's prosecution marks the first time the Norwegian government has attempted to punish individuals for accessing their own property. Previously, the government used this law only to prosecute those who violated someone else's secure system, like a bank or telephone company system, in order to obtain another person's records.
Norwegian prosecutors did not indict Per Johansen, but his son Jon Johansen could face two years in prison if convicted.
MPAA also requested ØKOKRIM charge Johansen with contributory copyright infringement; however prosecutors declined. Johansen's trial could start before summer 2002.
On November 1, 2001, the California Court of Appeal for the 6th District unanimously overturned a lower court's injunction that banned the publication of DeCSS on trade secret grounds, citing the First Amendment rights of individuals to independently obtain or derive information claimed to be a trade secret by DVD-CCA.
In another legal case to outlaw DeCSS, brought under U.S. federal law, the 2nd Circuit Court of Appeals in New York recently upheld a lower court's ruling that ordered 2600 Magazine to remove DeCSS from its online publication, including hyperlinks. Jon Johansen provided testimony in the 2600 Magazine case.
The Electronic Frontier Foundation (EFF) will continue to handle both of these U.S. DeCSS cases and is determining its role in the Johansen case.
Additional information on Johansen case:
Jon Johansen's testimony at the 2600 Magazine trial in New
York under the DMCA (July 20, 2000):
Declaration of Jon Bing, Norwegian legal expert on lack of
legal precedent in Norway to support ØKOKRIM's indictment
(filed in California DeCSS trade secrets case):
Additional information on DVD CCA cases:
"Free Jon Johansen" mailing list:
mail to free-jon-request@eff.org with subject "subscribe"
or go to:
The Electronic Frontier Foundation is the leading civil liberties
organization working to protect rights in the digital world. Founded in
1990, EFF actively encourages and challenges industry and government to
support free expression, privacy, and openness in the information
society. EFF is a member-supported organization and maintains one of the
most linked-to Web sites in the world:
http://www.eff.org/
Robin Gross, EFF Intellectual Property Attorney
robin@eff.org
+1 415-436-9333 x112
Cindy Cohn, EFF Legal Director
cindy@eff.org
+1 415-436-9333 x108
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On December 20, 2001, the Eastern District of Michigan Court handed down several rulings in Ford v. Great Domains, et al. In that case, EFF, along with pro bono counsel Eric Grimm and David Lowenshuss, represents 7 individuals who were sued by Ford for registering domain names that contain Ford trademarks. The domains are all used by individuals for purposes unrelated to selling Ford cars. Ford claimed both trademark infringement and violation of the Anti-Cybersquatter Protection Act (ACPA). The websites include:
All of the domains are passive, non-interactive domains. Jaguarcenter.com, jaguarenthusiast.com and vintagevolvo.com are all hobbyist websites with no commercial purpose whatsoever, much less one that might intrude on Ford's business. Ford claims that "cybersquatting" occurred because it alleges that all of the domains were registered for sale at Great Domains. In addition, EFF brought a motion on behalf of one of its clients, but whose goal was to free the over 70 other unserved domain owners from the shadow of the lawsuit.
First, the court granted EFF's motion to dismiss the trademark causes of action. It stated: "neither registering, nor warehousing, nor trafficking in a domain name that incorporates a protected trademark is alone sufficient to support claims of trademark infringement or dilution. Both causes of action require use of a trademark in connection with goods or services, which, in the cybersquatting context, generally will require evidence that the domain was used to host a website from which goods or services have been offered over the Internet."
Second, the Court rejected Ford's attempts to drag even more individuals into the lawsuit through a process called "in rem" jurisdiction. Ford had attempted to bring hundreds of additional individuals into the lawsuit by fictitiously claiming that the lawsuit was not against the owner of the domain, but the domain itself. Ford then claimed that a "deposit" of the domain name in the Michigan courts, done by NSI, would be sufficient to allow the case to go forward there. The Court disagreed. Thus the individuals who have not been formally served could not be brought into the case. This freed domains like the fan website classicvolvo.com, which is registered to a Swedish man, from the threat of the lawsuit.
Earlier, the court had denied EFF's motion to dismiss the case because Ford could not force the defendants, none of whom live or work in Michigan and several of whom live in England, to defend this case in Michigan. The Court refused to reconsider that decision at this stage, but its ruling allows EFF to renew the claim that none of the Defendants have sufficient contacts with Michigan to reasonably be sued there at a later date.
The rulings, while not a complete victory, are significant not only for this case but for many others. They establish:
Both of these are good for the Internet.
The case continues through the discovery phase. At the end, EFF intends to renew its motion to dismiss based upon lack of jurisdiction, as well as fight the main case--that merely registering a domain name that contains a trademark of a company and offering it for sale to the general public does not constitute cybersquatting when the domain name can have many noncompeting and noninfringing uses.
The decisions can be found at:
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On December 24, 2001, EFF told the California Supreme Court that it need not consider the preliminary injunction issued in the Bunner case. The case arises from Mr. Bunner's republication of DeCSS after it became widely publicly available in late 1999. In November, 2001, the Appellate Court had ruled in Mr. Bunner's favor, finding that the lower court had violated Mr. Bunner's First Amendment rights when it forced Mr. Bunner to remove DeCSS from his website.
The Appellate Court decision is available here:
The DVD Copy Control Association (DVD CCA), which licenses CSS, brought the lawsuit based upon its claim that DeCSS contains a trade secret that was originally part of CSS and so any Internet publication of DeCSS by those who "know or ought to know" of the trade secret claim is illegal.
Stating "rumors of the death of trade secret law have been greatly exaggerated," EFF pro bono attorneys Tom Moore and Rick Wiebe argued, first, that the DVD CCA, which sought the injunction, was now changing is legal and factual theory. Before all of the lower courts DVD CCA claimed that Bunner had no First Amendment rights in the publication of DeCSS, now suddenly it claimed that the First Amendment "intermediate scrutiny" test should be applied. It is improper to bring up new legal and factual arguments for the first time at the state Supreme Court, so that reason alone means that the Supreme Court should not consider the case.
The brief continues: "The Court of Appeal correctly decided the case by applying ordinary and well-settled principles of both trade secret and First Amendment law. Contrary to the DVD-CCA's representations, the Court of Appeal did not hold the USTA [trade secret law] unconstitutional nor did it hold that the First Amendment forbids every trade secret injunction. In reversing the preliminary injunction, the Court of Appeal found simply that when someone like Mr. Bunner republishes an alleged trade secret, a preliminary injunction against republication is a prior restraint under the First Amendment, and that on the facts of this case the trial court had failed to accord sufficient weight to Mr. Bunner's First Amendment right to speak."
The Supreme Court should decide whether to hear the case later this spring.
The brief is available at:
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In every field of human endeavor, there are those dedicated to expanding knowledge, freedom, efficiency, and utility. Many of today's brightest innovators are working along the electronic frontier. To recognize these leaders, the Electronic Frontier Foundation established the Pioneer Awards for deserving individuals and organizations. The Pioneer Awards are international and nominations are open to all. The deadline for nominations this year is Feb. 15, 2002 (see nomination criteria and instructions below).
How to Nominate Someone
You may send as many nominations as you wish, but please use one e-mail per nomination. You may submit your entries to us via e-mail to: pioneer@eff.org. Just tell us:
You may attach supporting documentation as RTF files, Microsoft Word documents, or other common binary formats, or as plain text. Individuals, or representatives of organizations, receiving an EFF Pioneer Award will be invited to attend the ceremony at the Foundation's expense.
Nominee Criteria
There are no specific categories for the EFF Pioneer Awards, but the following guidelines apply:
The 2002 Awards
The 11th annual EFF Pioneer Awards will be presented in San Francisco, California, in conjunction with the 12th Conference on Computers, Freedom, and Privacy (CFP2002). All nominations will be reviewed by a panel of judges chosen for their knowledge of the technical, legal, and social issues associated with information technology.
For more information please see:
Pioneer Awards web page:
CFP site:
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Stanton McCandlish, EFF Technical Director/Webmaster
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