The long arm of US law

I’ve written a post earlier on the case of Hew Raymond Griffiths, an Australian resident who has been extradited to the US on charges of software piracy and conspiracy. I noticed today that this issue has come up in the news again.

Griffiths was born in the UK and remains a British citizen, but has lived in Australia since he was 7 years old.

The US DOJ alleged that Griffiths was a ringleader of Drink or Die (aka “DOD”), an online “warez” group which specialised in cracking software products and distributing the free cracked versions on the Internet. In 2003, the US government demanded that Australia extradite Griffiths to the US to face charges under the US Copyright Act and the Australian government agreed to do so. While he fought the extradition process, Griffiths was denied bail and languished in an Australian gaol for three years. He was finally extradited in February this year.

On 20 April 2007, Griffiths pleaded guilty before the Virginian District Court to one count of conspiracy to commit criminal copyright infringement and one count of criminal copyright infringement. If convicted on both counts, Griffiths could receive a maximum
sentence of 10 years in prison and a $500,000 fine. He is due to be sentenced on 22 June 2007.

Did the Australian government have to surrender Griffiths up to the US government pursuant to the Australia-United States Free Trade Agreement (“AUSFTA”) ? Legally, I don’t think it did – but presumably it did so for political, economic and diplomatic reasons.

AUSFTA provides that we must accord “national treatment” to violation of American intellectual property rights – that is, we must treat violations of US intellectual property rights in the same manner as we would treat our own (Articles 17.1.6, 17.1.7 and 17.1.8 of AUSFTA). In addition, Australia had to enact detailed amendments to its intellectual property laws to bring them up to the standard required by the US.

I’ve had a quick read of Chapter 17 of 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 AUSFTA comes is in 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.” [emphasis added]

However, I don’t think surrendering a resident of Australia up to a US Court is part of the deal of “bilateral cooperation”. The US should leave Griffiths to be dealt with by Australian processes in Australian Courts, as this is his country of residence, and it is more appropriate that he be tried and, if appropriate, imprisoned here. Griffiths seems to have been singled out; all other DOD members have been prosecuted in their own countries of residence.

In saying this, I am not defending Griffiths’ conduct. The offences to which Griffiths has pleaded guilty are criminal. The US DOJ’s press release says DOD’s illegal software cracking activities cost US$50 million. It is theft to steal someone else’s creation and distribute it freely.

That being said, perhaps the US sought extradition because there could be some difficulty in prosecuting Griffiths as a result of the way in which the previous criminal provisions of the Copyright Act 1968 (Cth) operated. (This is the Act which would have applied at the time of Griffiths’ conduct.) Although there were provisions providing for criminal offences relating to copyright infringement, the wording tied the commission of the offence to whether the infringer did so for personal advantage or profit far more than the present Act does.

However, I would argue that s 132(2)(b) of the previous Copyright Act 1968 (Cth) would still cover Griffiths’ conduct:

A person shall not, at a time when copyright subsists in a work, distribute:

(a) for the purpose of trade or with the intention of obtaining a commercial advantage or profit; or

(b) for any other purpose to an extent that affects prejudicially the owner of the copyright;

an article that the person knows, or ought reasonably to know, to be an infringing copy of the work. [emphasis added]

Sub-section (b) covers Griffiths’ conduct. In fact, in his appeal against extradition to the NSW Court of Appeal, it was noted that the relevant provisions of Australian law which Griffiths would have been alleged to have breached were s 132(2)(b) of the <i>Copyright Act</i> and 11.2 of the Criminal Code (dealing with conspiracy).
In 2006, amendments to the Copyright Act were passed which clearly make conduct such as Griffiths’ illegal (see especially, s 132AC of the Copyright Act (Cth)). However, these amendments only came into force on 1 January 2007, and do not operate retrospectively.

Nevertheless, the question is whether this extraterritorial approach by the US government is inordinately heavy-handed and punitive. Should we willingly allow a foreign government to treat one of our residents in this way when we arguably have our own mechanisms for dealing with Griffiths’ conduct? Griffiths has already spent three years in gaol. He could be prosecuted under s 132(2)(b) of the Copyright Act as it formerly stood.

It is worth contrasting the treatment of Griffiths with the treatment of David Hicks. I did not agree with the incarceration of Hicks at Guantanamo Bay. However, to my mind, the allegations against Hicks did raise serious security issues, as he allegedly trained with and offered to assist terrorist organisations who have expressed a desire to kill innocent Australian and US citizens (among others). Yet, for reasons of political expedience, he is serving the rest of his sentence in Australia, and will only have 9 more months to serve. This guy could end up serving more time than Hicks, and in a foreign country. Doesn’t seem fair, does it? Let’s watch this space to see what happens.

Update

For more IP madness, see this case here, involving a Russian school teacher who was prosecuted and fined by Russian authorities for using pirated Microsoft software.

Update 2

NB: Further detail and corrections added about the Copyright Act regime because I realised I hadn’t explored the issues fully and hadn’t considered how the Act was at the time of the offence. Doh! Now corrected. I should be careful with IP law – all those Acts are confusing.

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15 Comments

Filed under Australia, criminal law, David Hicks, Intellectual property, Internet, law, technology, USA

15 responses to “The long arm of US law

  1. Shaun

    Excellent post. I do like the last paragraph and the comparison to Hicks. Not fair indeed.

  2. It’s great having your practiced (heheh) eye cast on these matters, LE.

    I find it tremendously interesting to get a legal context I otherwise would not have.

  3. pete m

    cyber crime has interesting “location” issues. If you rob a bank in Victoria, then Victorian law applies. If you hack into a server based in Virginia from Victoria, why should only Victorian law apply?

    My view on deportation in this circumstance is that if the criminal law sought to be applied in the US is considered by our Govt to be of equal or greater application to the alleged crime (and the govt can assess the case which here was overwhelming), and taking into account the victim (*looks at lefty), then what is wrong with sending the criminal to that lawful system for trial?

    How will we go asking US to send crims here to be tried who break into our computers or steal Aust IP, if we don’t co-operate? It is happening every day … All this excitement about sovereignty overlooks what the internet has caused an explosion of, being global communication / ability to commit global crimes. It needs a global response, not State rights bs response (hands off our citizen, even though the little #%#$% is a criminal – funny how he also pleaded guilty …).

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  5. I like the new site with WordPress and it’s making me reconsider my own. I’ve updated the link. Keep up the good work. John

  6. In addition, Australia had to enact detailed amendments to its intellectual property laws to bring them up to the standard required by the US.

    Plus a whole heap of pages of extra amendments added at the last minute so as to get past the senate without much debate. 😉

  7. Thank you all!

    John, if you want to change over, e-mail me and I’ll tell you how to do it (it was very easy).

    Bruce: yes, indeed. I was having a look at the Draft Bill which introduced the changes, and I noted that Senator Bartlett objected to it somewhat. At least someone was on the ball!

    AUSFTA seems to have been skewed towards protecting US intellectual property rights, and the new IP regime could cause problems for Australia, according to the couple of academic articles I read online yesterday (here and here, as well as a Report by the House of Representative Standing Committee on Legal and Constitutional Affairs).

  8. Nice follow up, very detailed examination of the law at work here. I wonder if you know specifically which US companies were involved in this case?

    I find it unsurprising that their PR departments would not want their heavy-handed tactics publicized. This is why (in part) we have useful acronyms like the RIAA.

  9. DOD apparently released Windows 95 two weeks before Microsoft released the official version. I’m not sure what else they did.

  10. KC

    Drink or Die at the time of the bust were only a shadow of what they used to be. Yeah they released Win 95 prior to Microsoft but that was when DoD was run by the Russians.RiscISO released Win 98 4 weeks prior to Microsoft. The DOJ have to make out DoD were a big deal to please the Entertainment Cartels they represent.

    The main recent amendment to Australian copyright law came as part of the Aust/US Free Trade Agreement.

    The other interesting fact in Hews case is that theDOJ and the Customs Dept had a paid informant in DoD. They paid him to solicit names and addresses of other members, as well as recruit members.

    The main evidence against Hew came from the Americans who got busted and pointed the finger at Hew for a sweet plea bargain. What they didn’t know was that Hew only had a dial up connection, it would be physically impossible for Hew to have Downloaded and Uploaded what they claim. I think this was the main reason the copyright infringement charge was dismissed.

  11. Are you telling us he has been surrendered to another jurisdiction for a crime he committed here, but that he might yet be saved because our internet connections are so slow?

    That would be a sweetly perverse moment.

  12. KC

    David Tiley, I wish this was the case. Hew was extradited to the US 17th Feb 2007. Two weeks ago Hew entered into a plea bargain for the charge of conspiracy to commit copyright infringement. The actual charge of copyright infringement was diamissed. The DOJ would not have been able to prove this charge so they dropped it. We all know how slow a dial up connection is, yet for the purpose of having Hew extradited they claimed he uploaded and downloaded hundreds of movies and software. This claim is just a lie and the Australian government was either more then happy to go along with it or just too stupid to see through the smoke and mirrors. You decide. Keep in mind that in the transcript of the Federal Court for the extradition of Hew they claimed that they could not do the copyright infringement charge on its own, that they needed the conspiracy charge as well. So what you have is an allegation of copyright infringement based on heresay evidence from American members of DoD doing plea bargains and pointing the finger at Hew to save their own skins. This then brings up the point of dual criminality in the Australian Extradition Act. Due to the NET Act introduced into American law, speciffically targeting WAREZ groups which makes it illegal to be a member of a WAREZ group this is where the conspiracy charge rises from, in that Hew as member is accountable by the actions of other members. Remember that all of the 45 americans who where part of DoD rolled over to save themselves.

    Apply this to Australian law and it doesn’t hold up. It is not illegal to be a member of a WAREZ group in this country, which leaves them with a bare faced lie they called copyright infringement. In a response from Alexander Downer to this case he advised me that the Australian Federal Police never investigated Hew. WHY???

    Hew Griffiths should not have been extradited. The current Howard government has bowed down to the US yet again, and in doing so have not only tarnished the soveriegnty of this country but have belittled the legal system. This case has set a very dangerous precident. I would ask people to at least have a look at the Free Trade Agreement between Australia and the US. In particular the section on Intelectual Property.

  13. KC,

    FYI – above in one of my comments there are a few links to cautionary articles about the implications of AUSFTA and the IP section. The Australian government seems to have naively assumed we are “mates” with the US so they wouldn’t rip us off. However, of course the US is going to look after its own interests first (as it is entitled to do). We should have looked after our own interests better.

    LE

  14. Pete M,

    I’m sorry, the spam filter ate your comment and I only discovered it today, along with two of my own comments – Akismet hates me, I’m not sure why. It’s always eating my comments.

    What about KC’s comments that Griffiths is a “fall guy” for others and there are other more culpable individuals out there?

    Another problem is that the way in which AUSFTA is drafted will make it difficult for Australian companies to develop their own IP…making it unlikely that we’d need a reciprocal favour in relation to a copyright thief from the US…

    I’m not saying what Griffiths did was right (it was theft) but his offence seems less morally culpable, say, than Hicks, who may end up serving less time.

    LE

  15. Pingback: LawFont.com » Crikey on Griffiths

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