Turre Legal

Court of Appeal overturned the CSS decision

Helsinki Court of Appeal overturned the decision of Helsinki district court, which said that CSS technological protection measured used in DVDs was ”ineffective”. The decision was very surprising and the guys were found guilty as charged.

There were at least three arguments why the guys should have won (not all related to the DRM issue). All of them were turned down.

The court of appeal motivated its decision first and foremost with legal policy saying that the district court judgement can not be right considering the objectives of DRM regulation. This is something you almost never see Finnish courts to say (use policy arguments).

I think the legal basis of the appeals court is acceptable and you can not say they made any grave legal errors (you can of course debate the legal issues). The biggest problem is that they have at least two major factual errors in the decision, both of which are needed for the court’s argumentation logic to succeed.

First of of all, the court said that circumventing an access control would have been ok but then it claimed that what the guys did was they circumvented a full copy protection system (CSS), not just an access control. In fact the guys circumvented only the access control (decryption) part of CSS. Nothing else was even claimed by anyone in the process!

Second, the court said that it is ok to circumvent if the circumvention happens without installing additional software. The court claimed that you always need to install some kind of ”hack” software for Linux systems in order see DVDs. Again, the court erred. In fact, you only need a (legal) player software like VLC or Mplayer, and with some Linux distros player cabale of showing DVDs comes standard. In the district court the technical witness from the Finnish criminal police answered as questioned that with his Ubuntu installed fresh on the system you just throw the DVD in and it shows the movie’s icon on the destop, there you just double-click and voilá. You don’t need *any* additional software in that case…

Now you ask how can they err like this. The court erred with the facts because they did not hear our case. They said they can see all the facts from the papers. And I was basically one of those poor counsels to believe them… If any of the judges would have been present in the district court I think they could have never stated the facts like that.

We appeal the decision to the supreme court and try to push it to the ECJ again (appeals court avoided to consult ECJ simply saying it has no legal requirement to do so).

While I think the decision was very surprising, and certainly would be overturned with correct facts, it is actually now probable that this was the final say in this case. Our supreme court takes only 10% of all cases appealed. We have a lot of work to do to correct this judgment. In the case we do not succeed to convince supreme court to take it, the only thing we can do is to explain the decision and its shortcomings in public.

The deadline of the appeal is July 21, and typically it takes 3-5 months for the supreme court to decide whether they take the case. Despite the 10% fact I believe we have >50% change to have this in. And in the case this goes in, my claim is that we will win this with >>50% change.

Herkko Hietanen
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Herkko Hietanen

Lakimies, osakas, kauppatieteiden tohtori, oikeustieteen maisteri at Turre Legal
Lakimies, jolla on 15 vuoden kokemus teknologia- ja mediaoikeudenkäynneistä, startup-yrityksistä ja IT-juridiikasta.
Herkko Hietanen
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