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Finn turns to ECHR after arrest for discussing DRM

Constitutional tussle rumbles into Strasbourg

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A Finnish man has asked the European Court of Human Rights to defend his right to discuss encryption systems used by the entertainment industry. He says that Finland's implementation of the EU's Copyright Directive restricts his right to free speech.

The Copyright Directive was transposed into Finnish law in 2006 and contained a controversial clause which said that it was illegal to participate in an 'organised discussion' about how to circumvent digital rights management (DRM) technology.

DRM systems are what music and film companies use to try to stop people illegally copying CDs and DVDs. The DVD encryption system is called the Content Scrambling System (CSS), and was cracked in 1999.

Mikko Rauhala objected to the Finnish law and deliberately began an online discussion about CSS and how it can be circumvented. He and other protest organisers presented themselves at their local police station in relation to the discussion.

In the ensuing court case it was ruled that they had not broken the law, which refers to "effective" DRM systems, because the long-cracked CSS could no longer be considered "effective".

That ruling was overturned on appeal and Rauhala has now lodged an application for his case to be heard at the European Court of Human Rights, which deals with violations of the European Convention on Human Rights.

Digital civil rights group European Digital Rights published a statement from Rauhala's lawyers, Turre Legal.

"Mr Rauhala had no other choice than to make an application to the European Court of Human Rights, because in all the court instances his argument that the discussion he was administering was within the confines of the Right to Freedom of Speech, as enshrined in the Finnish Constitution, was not considered," said the statement.

When Rauhala lost his case on appeal, Turre Legal lawyer Mikko Välimäki said that the ruling was based on factual errors.

"I think the legal basis of the appeals court is acceptable and you can not say they made any grave legal errors," he said in May 2008. "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."

An application to appeal to Finland's Supreme Court was denied.

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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