USA says: You’re nicked, sonny…

Both skepticlawyer at Catallaxy and Shaun Cronin at LP have written posts on the case of Huw Griffiths (reported here).

Griffiths is a former internet software pirate who cracked and downloaded software and distributed it for free. He has been charged under US Copyright law, and charged by a US grand jury (equivalent of a committal hearing – merely establishing that there is enough evidence to proceed). The US has demanded that Australia extradite Griffiths to face trial before the US District Court in Virginia.

Griffiths has agreed to plead guilty to offences under Australian copyright law (which he also breached). Minister Chris Ellison could have refused the US extradition request, but after months of delay, Ellison has issued a warrant for Griffiths’ extradition. Meanwhile, Griffiths was refused bail and has languishing in an Australian gaol for almost three years.

Seems a pretty harsh punishment. Many convicted criminals get less time in gaol than that.

As skepticlawyer says, the case raises two interesting questions:

  1. How sensible is IP law? Should IP rights be accorded the same protection as other property rights?
  2. What are the implications of the extraterritorial reach of the legal arm of US law? The US loves to enact extraterritorial laws (eg, US “antitrust” laws)

One of the ironies is that in the 18th century, the US was one of the biggest copyright violators out there. There was a massive black market in unauthorised copies of various English novels. However, the shoe is on the other foot now…

Being a nerd, I must delve briefly into some legal considerations… Article 3 of the Agreement on Trade Related Aspect of Intellectual Property Rights (“TRIPS”) says that states must accord foreign copyright holders the same degree of protection that they accord their own copyright holders (called “national treatment”). The only basis on which the US could validly argue that its IP laws should operate extraterritorially would be if Australian law did not comply with national treatment (ie, it did not protect US copyright holders to the same extent as Australian copyright holders). Australian law clearly complies with this provision, and in fact, is in conformity with international intellectual property norms. Therefore, I would argue that the purported extraterritorial operation of the US copyright law is clearly baseless in this instance. Further it is a breach of Australian sovereignty.

So it seems to me (without knowing the full details of the case) that the obvious response is to (a) refuse to extradite Griffiths and (b) charge him under the Australian Copyright Act.

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5 Comments

Filed under Australia, Intellectual property, Internet, law, USA

5 responses to “USA says: You’re nicked, sonny…

  1. Anonymous

    Legal Eagle.

    Your astute research and analysis is spot on regarding TRIPs. A charge brought in Australia under a perfectly TRIPs-compliant Copyright Act 1968 would have best served the interests of justice and the community.

    Alas, there were other over-riding interests at stake of which Messers Howard, Downer, Ruddock and Ellison are acutely aware.

    Have a careful read of the Aust-US Free Trade Agreement chapter on IP enforcement and the cross-border co-operation it envisages.

    Check out as well the wikipedia.org entries for “Hew Raymond Giffiths” and “DOD” which make chilling reference to a new “benchmark” for securing US corporate interests by breaking down national borders.

    Stay tuned for the rubber-stamping of Hew’s guilt before judge and jury in Virginia during the week beginning on 14 May 2007.

    Please continue to publicise this within and beyond your circles.

    BaggageHandler

  2. TRIPS Nerd

    This case is pretty alarming. And I Love Your Work in general terms. But let me gently readjust one aspect of your reading of the international law angle. TRIPS doesn’t give any basis for the extraterritorial assertion of jurisdiction for copyright infringement. If Australia failed to have adequate, TRIPS-compliant copyright law (or if it failed to provide for national treatment), then the only course of action for the US would not be to assert its extraterritorial jurisdiction to fill the gap, but rather to take a case against Australia through the WTO dispute settlement system. (For a copyright case which the US lost, see http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds160_e.htm). Of course, as the last post points out, there is now a direct bilateral route for taking up claimed shortfalls in IP protection as well, courtesy of dispute settlement procedures under the bilateral trade agreement. Australia recently criminalized further copyright breaches at the bidding of the US, but these proceedings were commenced well before those amendments.

    Let’s see if Griffiths is penalized more than Australian David Hicks, charged with material support for terrorism and sentenced to seven years, suspended but for nine months to serve http://www.news.com.au/story/0,23599,21478966-2,00.html

  3. By all means, gently readjust my understanding!
    I was thinking of a scenario where the US went to the ICJ and tried to establish that there were international IP norms, and then force Australia to accept the extraterritorial operation of its laws. Australia could then argue that it had complied with international law norms and TRIPs and the like – but of course, as you point out, both countries are members of TRIPs and all those other WTO treaties, there’s no need to go to the ICJ at all, and any dispute goes to the WTO. Doh!

    I’ve had a bit of a look at AUSFTA, and I don’t think there’s anything in it which says we have to accept an extraterritorial aspect to US law. The closest it gets is Article 17.11.25, which reads:
    “Each shall provide the other, on mutually agreed terms, with technical advice on the enforcement of border measures concerning intellectual property rights, and the Parties shall promote bilateral and regional cooperation on such matters.

    I don’t think surrendering our citizens up to US Courts is part of bilateral cooperation – after all, the whole point of AUSFTA is that our laws are adequate for US purposes and vice versa.

  4. Pingback: The long arm of US law « The Legal Soapbox

  5. Pingback: LawFont.com » Crikey on Griffiths

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