Will DVD acquittal mean tougher copyright laws?

Norwegian authorities tried Jon Johansen on criminal charges for writing a software tool that can be used to overcome anticopying technology built into most commercial DVDs. Last week, an appeals court threw out the government's case, agreeing with a lower court that Johansen had done nothing wrong under Norwegian law.

Even before the Norway case was filed, however, entertainment industry lobbyists had been pressing lawmakers in that country and elsewhere to enact tougher copyright laws, modeled on controversial U.S. legislation that makes it easier for authorities to win prison terms for people who crack encryption schemes or distribute cracking tools. If enacted, proposed legislation in Europe, Canada, Australia and Central and South America would soon hand entertainment companies similar weapons against people caught tinkering with anticopying software.

That's raising warning flags from some critics of the U.S. legislation, known as the Digital Millennium Copyright Act (DMCA), who contend the law protects content owners at the expense of consumers and software experimenters. Now, they say, that law is being exported around the globe with little debate.

"It is interesting that the court said Johansen had not broken any law, but the laws are changing," said Robin Gross, executive director of IP Justice, a nonprofit group that opposes the DMCA.

Monday's decision affects only Norway, a small Scandinavian country with a population smaller than that of New York City. Still, it is a notable setback for Hollywood, which had hoped the case would send a strong message of deterrence to potential DVD pirates, given Johansen's hero status in the video underground. The tool he's become famous for, called DeCSS, has been banned by a U.S. federal appeals court, but it's inspired poems, music, T-shirts and art from admirers.

The acquittal was heralded by Hollywood critics as an important blow for consumer rights in the digital age, at a time when the entertainment industry has increasingly relied on technology that seeks to bar people from copying media products. Those measures may curtail not only piracy, but activities that many people assume are legitimate, such as making a backup of a legally purchased disc.

The case had also been taken up as a cause celebre in software circles on a more esoteric principle, with some programmers worried over a growing and potentially dangerous conflict between their right to develop new products and the right of content owners to protect their profits.

Jonathan Band, an attorney in the Washington, D.C., office of Morrison & Foerster, said the Johansen acquittal is important because it highlights some of the shortcomings of the DMCA, which offers few exemptions for legitimate copying of digital material.

"The acquittal is a great development," Band said. "The whole notion of prohibiting acts of circumvention or circumvention devices when it's not directly tied to infringing conduct is the wrong approach. The point is, there may be lawful reasons why someone would want to circumvent a technology."

But others said DMCA-like laws are the entertainment industry's best hope of fending off a new era of digital piracy, in which large-scale piracy operations and ordinary consumers have easy access to tools for making and distributing perfect copies of movies and other media.

Ian Ballon, an intellectual-property attorney in the firm Manatt, Phelps and Phillips, said court cases targeting alleged piracy have generally gone in favor of the content owners to date. But he said the industry is still on the defensive and needs to bolster legal victories with better antipiracy technology.

"By and large, content owners have prevailed in most of the litigation they've brought," Ballon said. "But the place where content owners have been losing is on the Net. Although new technology provides some new opportunities, it has made piracy easier than ever. Court opinions alone have not been able to withstand it. As a result, technology solutions will be required to address the problem of global infringement."

It's a small world after all
In some ways, the Johansen ruling offers a simple reminder that different countries have different laws, and companies can't rely on protections established in one region to protect them elsewhere.

But the case also points to an aggressive drive in the entertainment industry to win greater global conformity in copyright law, modeled on the DMCA.

Passed in 1998, the DMCA was the first national law to arise from a landmark 1996 agreement, known as the World Intellectual Property Organization (WIPO) Copyright Treaty, to explicitly criminalise tools that "circumvent" encryption schemes and the act of "trafficking" in circumvention tools.

The DMCA has become a legislative template used by U.S. negotiators in trade talks, according to legal experts, where it is used as a bargaining chip with potential trade partners. If countries agree to pass DMCA-like laws as part of a treaty, negotiators may offer better terms for exchanging other goods and services.

The U.S.-based movie and music industries have won some important victories in pushing this agenda.

International copyright experts said that the European Union has begun implementing the treaty in earnest this year, with Germany among the latest states to ratify enabling legislation this summer. Although that's considerably slower than Hollywood studios and record labels had hoped, the process appears on track to have most European countries finish their versions of the law by 2004.

U.S. negotiators are also seeking to extend DMCA-like laws as part of the pending Free Trade Area of the Americas (FTAA) treaty, which would encompass most of North, Central and South America.

As Norway illustrates, however, the process can move slowly, leaving the entertainment industry exposed to weaker copyright rules in regions where DMCA-like laws have not yet been passed.

"There was never any sense that someone would clap their hands and click their heels and have (the treaty implemented) overnight," said Motion Picture Association of America (MPAA) spokesman Rich Taylor. "Over time, more countries are coming on board, and other countries are doing things to increase their vigilance. As long as we can keep that momentum, we'll consider ourselves on the right course."

Such comments aside, the MPAA has begun to show signs of impatience over the pace of WIPO implementation.

Lacking an anticircumvention statute, Norwegian prosecutors pursuing Johansen were forced to rely on an older law prohibiting anyone from breaking into a computer system in order to access data to which they are not entitled, according to IP Justice's Gross. The case was the first time prosecutors had tried to use the law against someone accused of breaking into data that they owned themselves, she said.

In responding to the outcome of the prosecution, the MPAA raised the possibility of a further appeal to the nation's Supreme Court. But any shortcomings in the government's case, the group said, could be addressed by Norway's lawmakers.

"If the present decision is the courts' final word on the matter, we hope that the Norwegian legislature will move quickly to implement the WIPO Copyright Treaty to correct this apparent defect in Norwegian law," the MPAA said in a statement following Johansen's acquittal.

Setbacks mounting
The Johansen verdict is one of several recent antipiracy setbacks for the entertainment industry in courts around the globe.

Recently, a federal appeals court in Washington, D.C., barred the record industry from seeking the names of alleged file swappers from Internet service providers without first getting permission of a judge. The ruling could raise costs and create delays for the industry's recently adopted and controversial legal strategy of suing hundreds of individuals to thwart Internet piracy.

Also, the Dutch high court refused an industry request to shut down peer-to-peer software maker Sharman Networks, which distributes the popular Kazaa file swapping client.

In Canada, meanwhile, the copyright office issued a determination that downloading copyrighted works over a peer-to-peer network is legal under that country's laws, although uploading files is not.

Meanwhile, moves to rein in the DMCA have been initiated in the U.S. Congress, where at least two bills have been introduced that would grant exemptions for consumers who crack encryption for certain legitimate purposes--for example, to make a backup copy of a legally purchased DVD. Those familiar with the bills said they stand no practical chance of success, at least in the current political climate.

On the international scene, as well, the entertainment industry has few serious political opponents standing in the way of its DMCA agenda.

Still, there are signs that some U.S. trading partners are growing increasingly reluctant to rubber-stamp IP provisions pushed aggressively by U.S. negotiators in trade-treaty talks.

For example, Brazil has recently raised objections over including intellectual-property discussions in the FTAA treaty, according to Peter Jaszi, a professor of intellectual-property (IP) law at American University Law School in Washington, D.C.

Jaszi said he was not familiar with the specific reasons for Brazil's position on the IP negotiations, which touch on a sweeping range of topics, including high-priority items such as patented AIDS medicine. Regardless of the reasons for the opposition, however, Brazil's objections could delay the ratification of DMCA-like copyright laws in the region for some time.

Deep reservations over U.S.-led IP policy may also be at work.

"There is a good deal of suspicion of the whole IP package the U.S. is pushing in the free trade agreement and also bilateral trade agreements," Jaszi said. "What I think will be borne out is that there is an increasing sense within that community that the U.S. has a very strong protectionist agenda and that may not be in every case the best approach for countries at different stages of development."

Whether that results in organised opposition to DMCA-like laws, however, is unclear at this stage.

"If I'm an African country in a trade negotiation with the U.S., I'm probably more interested in medicine and (in) getting cotton into the U.S market, than (in) dealing with hypothetical copyright restrictions, Jaszi said.

But entertainment executives are also chafing at ongoing delays in the treaty process that have left Canada and Korea, two well-developed countries with high levels of broadband Internet penetration, without anticircumvention laws.

"The (WIPO) treaty was effectively negotiated a decade ago," said Neil Turkewitz, the Recording Industry Association of America's executive vice president for international issues, "and for a country like Korea, or Canada, to say now that they need to start examining these issues is crazy."

John Borland contributed to this report.