By Dugie Standeford for Intellectual Property Watch
A ruling by the Helsinki, Finland, District Court could have far-reaching implications for the use of technical protection measures (TPMs) in Europe, according to legal experts. The 25 May decision held that the Content Scrambling System (CSS) now used in DVD movies is “ineffective” as the term is used in the 2001 European Union Copyright Directive (EUCD) and Finnish law, because it has been regularly circumvented since 1999.

If upheld on appeal, the decision could jeopardise other TPMs, including digital rights management (DRM) systems, said Mikko Valimaki, attorney for one of the defendants.

Article 6 of the EUCD – and Finnish law implementing the directive – requires EU member states to provide adequate legal protection against the circumvention of any “effective technological measures.” Section 3 states in part: “Technological measures shall be deemed ‘effective’ where the use of a protected work or other subject-matter is controlled by the rightsholders through application of an access control or protection process… which achieves the protection objective.”

After Finland adopted the directive into national law in 2005, a group of Finnish computer hobbyists and activists created a website where they posted information on circumventing CSS, Valimaki said. They then told police they had potentially violated copyright law. Most believed they would not be prosecuted, but, to their surprise, discovered otherwise, he said.

A unanimous court ruled that CSS no longer achieves its protection objective because, since its first circumvention by a Norwegian hacker in 1999, end-users have had access to many kinds of decoding software on the Internet, some of it free, Valimaki said. Finding that CSS protection can no longer be held effective as defined by law, the court dropped all charges, he said.

The decision has relevance throughout the EU because the term “effective” comes directly from the EUCD, said Valimaki, who stressed that it is only binding on the Helsinki District Court. “The provision is intended to harmonise the legal protection of technological measures and gives little room for national modifications,” said Viveca Still, a University of Helsinki law professor working on a Ph.D thesis on the legal implications of DRM.

The EUCD makes clear (and Valimaki argued) that the word ‘effective’ must be defined by some sort of empirical test, such as whether a TPM can be broken by technology experts or by random end-users. The court chose the second, “weaker,” option, so the decision could have been even more devastating for DRM users (if experts’ ability to break it had been the measure of ineffectiveness), he said.

But Still said the argument that circumvention of a technological measure means it is not effective, at least not if it has been previously decoded, “has been rejected by legal doctrine, as it would make the legal protection of technological measures meaningless.” There are provisions in the EUCD and Finnish copyright law which “would make it possible to consider it lawful to provide a circumvention measure in this case,” Still said, but they relate to interoperability, an issue the court left unaddressed.

Valimaki’s arguments are “strong enough for DRM users to start thinking,” he said. The decision may be a problem for the DVD Copy Control Association (DVD CCA), the California group that licenses CSS to DVD player manufacturers in Europe and Asia, because European device makers could refuse licences, he said. And because the decision appears to be technology-neutral, it could apply to other technologies as well, he added.

“Clearly, we’re aware of the court’s action, but we do know that in the US, courts have ruled CSS to be effective, viable protection,” a DVD CCA spokesman said.

The prosecutor announced she will appeal the decision and may ask the Finnish Copyright Council for an opinion on the interpretation of “effective,” Valimaki said. The opinion is not likely to withstand an appeal based on the arguments offered in the trial court, Still said. The Helsinki Court of Appeal is not expected to rule until 2008.

Anti-Piracy Monitoring Upheld

Separately, France’s top administrative body, the Conseil d’Etat, overruled an order by the country’s privacy watchdog prohibiting the monitoring of the Internet for massive peer-to-peer (P2P) copyright piracy. The 23 May ruling could pave the way for more online monitoring proposals, said Meryem Marzouki of digital rights group Imaginons un Reseau Internet Solidaire.

Major music rights bodies seeking to monitor for significant music file uploads challenged the order by the Commission Nationale de l’Informatique et des Libertés (CNIL). The conseil agreed with two of the groups’ three arguments, but backed CNIL’s ruling that rightsholders cannot send users warning e-mails because translating their Internet Protocol addresses into e-mail accounts can only be done under a court order or police mandate, Paris attorney Winston Maxwell said.

Dugie Standeford may be reached at info@ip-watch.ch.