CSS Declared Not an ‘Effective’ Protection Measure under European Copyright Directive

(05.25.2007) A Finnish Court has unanimously ruled that the Content Scrambling System (CSS) computer code, which unlocks DVD movies, is lawful in Europe. The decision was a first to interpret the legality of DVD decoding software under the 2001 European Copyright Directive.

The EU Copyright Directive is similar to the 1998 US Digital Millennium Copyright Act, although US courts have ruled that the decryption software (DeCSS) is an illegal circumvention device. DMCA violations carry stiff penalties including jail time, as Russian cryptographer Dmitry Sklyarov experienced in 2001 when he was arrested for decoding Adobe software in Russia as part of his graduate studies and employment for a major software firm; Sklyarov was arrested when he visited the US to speak at a technical conference and spent 6 weeks in jail, causing an international incident.

What is so exciting about this week’s Finnish Court decision is that it will apply throughout the European Community, since it was an interpretation of the EU-wide Copyright Directive’s definition of the key term “effective” in Article 6. If CSS is not an “effective” technological protection measure regulated by the directive, then its decryption is lawful throughout the European Community.

The Finnish court ruled that CSS is “ineffective”, since it was decrypted 8 years ago by a Norwegian teenager Jon Johansen, making it widely known in the technical community, and its decryption software, DeCSS, has been available to anyone with an Internet connection.

This ruling is good news for consumers and innovators who want to build interoperable tools that will permit consumers to engage in a full range of lawful activities with their digital media collections, like making digital movie archives and video “mash-ups”. Besides applying across the EU, European experts believe this ruling will apply across media platforms and not restricted only to DVDs.

Its important to note that nothing in the decision allows consumers to make illegal copies of movies or to otherwise violate copyrights. The Helsinki court’s decision just removes the legal myth that a weak encryption mechanism should provide a legal bar to making legitimate copies.

Congratulations to the Finnish attorney Mikko Välimäki and defendant Mikko Rauhala who brought the case and set the important precedent for innovation, competition and free expression in Europe.

* 25 May Helsinki Court Decision Translated into English, courtesy of EFFi. 

Helsinki – May 25, 2007

Free for publication immediately

Turre Legal

Finnish Court Rules CSS Protection Used in DVDs “Ineffective”

In an unanimous decision released today, Helsinki District Court ruled that Content Scrambling System (CSS) used in DVD movies is “ineffective”. The decision is the first in Europe to interpret new copyright law amendments that ban the circumvention of “effective technological measures”. The legislation is based on EU Copyright Directive from 2001. According to both Finnish copyright law and the underlying directive, only such protection measure is effective, “which achieves the protection objective.”

The background of the case was that after the copyright law amendment was accepted in late 2005, a group of Finnish computer hobbyists and activists opened a website where they posted information on how to circumvent CSS. They appeared in a police station and claimed to have potentially infringed copyright law. Most of the activists thought that either the police does not investigate the case in the first place or the prosecutor drops it if it goes any further. To the surprise of many, the case ended in the Helsinki District Court. Defendants were Mikko Rauhala who opened the website, and a poster who published an own implementation of source code circumventing CSS.

According to the court, CSS no longer achieves its protection objective. The court relied on two expert witnesses and said that “…since a norwegian hacker succeeded in circumventing CSS protection used in DVDs in 1999, end-users have been able to get with ease tens of similar circumventing software from the Internet even free of charge. Some operating systems come with this kind of software pre-installed.” Thus, the court concluded that “CSS protection can no longer be held ‘effective’ as defined in law.” All charges were dismissed.

Defendad Mikko Rauhala is happy about the judgment: “It seems that one can apply bad law with common sense, which was unfortunately absent during the preparation of the law” he comment. Defendant’s counsel Mikko Välimäki thinks the judgement can have major implications: “The conclusions of the court can be applied all over Europe since the word ‘effective’ comes directly from the directive”. He continues: “A protection measure is no longer effective, when there is widely availalble end-user software implementing a circumvention method. My understanding is that this is not technology-dependent. The decision can therefore be applied to Blu-Ray and HD-DVD as well in the future.”

Further information:

Mikko Välimäki
Denfendants’ counsel
tel. +358-50-5980498
email: mikko.valimaki@turre.com

Mikko Rauhala
Denfendant who opened the forum
email: mikko.rauhala@iki.fi