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.

If the Price is Right?

Like many lawyers, I find the behaviour of the US government and the Australian government in relation to Guantanamo Bay detainees to be inconsistent with the operation of the rule of law, the doctrine of habeas corpus and the notion that one cannot be charged retrospectively with crimes. As I have explained in previous posts, I think that no matter what someone has done, they deserve to be treated fairly, with due process. As Emma Toms pointed out in a piece in The Australian earlier this week, justice must be “one size fits all”:

But giving Arrestee A access to a turbo drive and road service while insisting that Arrestee B battle along with dodgy brakes and a smoking head gasket raises some serious issues. The first is that – like aeroplane oxygen masks, hospital gowns and disposable bikini waxing briefs – the guiding principle of a good legal system is that one size fits all.Chopping and changing depending on the case is problematic because it requires making extrajudicial assumptions in advance of a court hearing (that is, David Hicks is obviously a terrorist, therefore he deserves only terrorist justice). It also grants enormous power to those who are allowed to make such decisions.

I couldn’t agree more. However, as I have said previously, I detect a certain amount of “bandwagoneering” on the topic of David Hicks. All this attention and effort in relation to one person! I do hope that the man doesn’t end up profiting hugely from the whole affair. He strikes me as a stupid and unpleasant person. In a letter to a former flatmate, Louise Fletcher, Hicks responded to her suggestion that she write a book about him as follows:

“Don’t try to write about my adventures because you don’t know that information.

Nobody does, so it would be inaccurate. I would prefer if you wrote nothing about anybody, for that matter. S***, I would have no chance to make any money when I got home, otherwise.“

A few of the excerpts from the letter give an unattractive picture of the man. Well, the Taliban were an unattractive mob – perhaps like attracts like? Certainly, his former father-in-law doesn’t seem think much of him, saying that he would not allow Hicks to see his children.

Terry Hicks has said in a recent report that David doesn’t intend to sell his story. However, the same article reports a PR expert saying Hicks could get over $1million if he “sells his story”. I can understand that he would be tempted by a million smackaroonies, but I can think of far more deserving recipients than Hicks. The whole thing just makes me feel ill. Ironically, the Federal government has contributed to the high value of Hicks’ story. It just proves that one can never know the consequences of actions! If the government had demanded him home in the first place, (a) it would have been the right thing to do from a principled point of view; and, (b) from a pragmatic point of view, he would never have reached a status where he could demand million dollar sums for his story.

I certainly won’t be buying Hicks’ book or watching his story. In saying this, I do not deny being incarcerated for years in a tiny cell, including being put in solitary confinement is a very unpleasant experience for any human being. It should not happen without due process being followed. But what about the many other Australians who live under terrible circumstances? For example, what about the problems in indigenous communities, including the endemic abuse of women and children? Noel Pearson describes a heart-breaking visit to his home town vividly here. Where are the lawyers, the high profile QCs and the law lecturers rallying to defend indigenous women and children who have been abused by their partners and families? It seems to me that the issue of indigenous problems just keeps getting pushed under the surface, bobbing up every few months. It’s just not a “sexy issue” – too morally complex, and mixed up with issues of cultural relativism – it’s easier just to put it into the “too hard” basket. So, let’s not get so worked up about Hicks that we forget other societal injustices. Although issues such as indigenous issues will not be easily solved, they shouldn’t be forgotten.

Update

As part of his plea bargain, Hicks has agreed not to profit from the sale of his story – any profits are to go to the Australian government. I’m glad.

(Via Tim Blair)

Justice for all?

In The Age today, I read an opinion by George Williams, a professor at the University of New South Wales. In summary, his opinion is that the law needs to be reformed in four ways:

1. There needs to be more funding for legal aid and community centres. Obtaining justice is highly dependent upon being able to afford legal representation.
2. The federal system needs to be reformed. At the moment, there is a tremendous waste of money and resources, as well as a tendency for each level of government to blame the other for problems.
3. David Hicks needs to be given a fair trial or returned to Australia.
4. Australia needs a national charter of human rights.

It’s interesting to read someone else’s ideas for legal reform. Let’s look at each point.

1. Legal representation

I would definitely agree that the legal system is weighted towards those who can pay for legal representation. One of my first posts on this blog was on how awful it was to be sued by our former landlords. And I am an educated lawyer, a commercial litigator and experienced advocate. How much scarier would it be if you had no legal training and no legal representation? There is a real potential for unscrupulous individuals to use litigation to bully people. Legal representation is far too expensive for most ordinary people. I know that I certainly couldn’t have afforded to hire myself at the rates at which my last firm used to charge. And I wasn’t working for a mega-firm at that time, either. When I worked for a mega-firm…well, let’s just say wounded bulls weren’t a patch on one of our firm’s bills. I suspect the six-minute billing unit is instrumental in pushing up legal bills. I continue my campaign for its abolition (mentioned in this post). I think six minute billing makes firms obsessed about meeting targets and maximise profits, and obscures the fundamental purpose of a law firm: to serve the client efficiently and effectively. It also drives legal representation out of the range of the ordinary person.

The answer is not just about providing more legal aid and funding for community legal centres, although that certainly helps. But I think it is deeper than this. I would like to see more opportunity for everyday people to learn about and understand basic concepts of the law (contracts, mortgages, wills, personal injury and the like). Unfortunately, many lawyers like the law to seem arcane and unknowable, because it keeps them in a job. I’m sure some lawyers deliberately over-complicate a matter so that they appear to be clever. Also, as I’ve mentioned in a previous post, sometimes lawyers don’t have an opportunity to sit down and think: “What’s this dispute about really?”

If a person cannot find adequate legal representation, they often have to represent themselves. I have written posts on litigants in person previously (here and here). Having worked in and around courts for most of my career, I have always found litigants in person very difficult to deal with. Litigants in person certainly use up valuable court time, often with spurious arguments, but a judge cannot just dismiss them, because there may be an argument of value in there. As I have said previously, the ideal situation is to find out what makes a litigant in person so that it can be nipped in the bud before the person becomes a fully fledged conspiracy theorist. Is it because legal advice is too expensive or difficult to obtain? Or is it because the person does not wish to take the legal advice he or she initially received? I think there needs to be more research into this.

2. The Federal System

This isn’t the first law reform that would spring to my mind, but I would also agree that the present system doesn’t really work. There is far too much opportunity for “buck-passing”. When I studied Constitutional Law many years ago, we learnt about Vertical Fiscal Imbalance – that is, the Commonwealth has all the money, and the State has responsibility for vital services like health and education. Obviously, it is a legal matter in that the High Court has construed the Federal taxation powers very broadly, narrowing the pool that the States can dip into.

I also think the taxation system in this country is very badly organised. All too often, money goes from one arm of government to another. So, as I have mentioned in a previous post, we got the baby bonus when our daughter was born, but had to pay it straight back to the Federal Government a month later because of the tax my husband had to pay after he got retrenched. And what about the first home owner’s grants? The Federal and State grants together don’t cover the amount of stamp duty a home owner has to pay to the State government – why not just give it straight to the State government instead of pretending to “give” it to us?

3. David Hicks

As I have discussed in a previous post, I don’t think Hicks should continue to be detained by the US. It is hypocritical of Australia and the US to try to force “democratic values” on other countries, but fail to practice them in one’s own country.

Nonetheless, I detect a certain amount of “bandwagoneering” on this topic. Yes, what has happened to Hicks is horrible, and it should not be allowed to continue. But lawyers should not be distracted by a high-profile “sexy” issue such as this, which affects only one person (albeit in a disasterous way). I am concerned that it is easier for lawyers to concentrate on an issue like this, and forget the smaller problems which affect many Australian people (such as the difficulties in obtaining legal representation mentioned at the beginning of this post). Everyone has a right to their case being heard.

4. Charter of Human Rights

When I was younger I was a great fan of human rights charters. I was more left-wing, less cynical and jaded. But I must confess that I’m not so enamoured of them now, although I concede that such a view is contentious and unfashionable. I come to this view after being thoroughly depressed by International Law and human rights law at university: it always seemed to me like shutting the door after the horse has bolted. Everyone looks at Rwanda and says “Genocide is an abuse of human rights” – but did anyone stop it happening at the time? A Charter of Rights just gives lawyers a reason to ponce around and act like they are good for humanity, but I don’t know whether it will really make such a difference in the long run. Feel free to castigate me for being such a nasty old curmudgeon.

I tend to think that if a government or an individual is determined to abuse someone’s rights, they’ll do it anyway. Look at the Freedom of Information laws, for example. They were designed to give the public access to government documents, but as far as I can see, the government has just devised niftier ways of hiding information from the public as a response. For example, I cite this recent High Court case on the FOI legislation. Depressing.

5. Conclusion

What would my priorities be? I like the first point made by Williams about the difficulties in obtaining legal advice. I’d also like a greater awareness of the law in the community, for legal advice to be more affordable and some research on litigants in person to be carried out.

In terms of the federalism point, I’d like there to be greater uniformity of laws across Australia (eg, Uniform Evidence Law, Uniform Torrens Acts, Uniform Criminal Codes etc). It seems stupid to have regional variation. I have some interesting arguments about ways in which Equity should be used more flexibly to make our commercial law fairer, but I’ll save them for the PhD thesis. On a more “political” level, I’d also like our taxation system to be simplified and the bureaucracy and doubling up to be reduced.

I’d like Hicks to be brought home, but I’d also like to keep in mind the plight of other everyday people in Australia who are in difficulty because they don’t understand the law and don’t know where to turn.

My main concern, I suppose, is that the law be approachable and accessible for as many people as possible, and that people have a chance to be treated fairly and equally, to obtain quality and affordable legal representation, and to have their case heard. I think all of my wishes flow from that basic tenet.

Update

An interesting opinion in The Australian about the use and abuses of a Charter of Human Rights.

Guantanamo Bay

I am very glad that the US Supreme Court has held that the military commissions for the Guantanamo detainees lack the power to proceed. Accordingly, I find the Australian government’s response disappointing. Alexander Downer told press today that Hicks admitted to training with a murderous, bloody, intolerant and racist terrorist organisation and must stand trial in the US. That may be so. But it strikes me as barbarous that a civilised, democratic country should detain people at will in this way, with no right for a detainee to know what case is put against him. The Australian government should ensure that its citizens are treated fairly when detained in another country, no matter what those citizens have done. Further, I feel that the Australian government should press the American government to allow all detainees fair trials which accord procedural fairness.

Why does it matter? People might say:

• “Why should we care about David Hicks? He is an idiot who got involved with terrorists and he deserves to be punished. Same with the rest of them!”
• “If those guys caught an American solider, they’d kill him and put footage of it on the internet, so this kind of treatment isn’t so bad in comparison.”
• “This is a war on terror, and it’s okay to use extreme measures in those circumstances.”

It is hypocritical to pontificate to other countries that they should follow the rule of law, and then to institute measures which violate the rule of law. I believe that it is important that all persons be treated with a modicum of equality and procedural fairness, no matter what crimes they have committed. People should not be detained “at will” (known in legal circles as habeas corpus). People should have a right to know what crimes they have committed and what evidence is going to be put against them. These are fundamental rights and an important part of the rule of law. It is also important to treat prisoners of war fairly, no matter how badly the other side might behave. It’s not a question of whether the detainees are idiots or nasty people or terrorists, it’s a broader question of principle.

But even adopting a pragmatic point of view rather than standing on principle, such treatment is not going to win America any fans. I read with interest an article by Waleed Aly which said that both the West and the Islamic world were guilty of stereotyping each of the other as fanatical, violent, intolerant and disrespectful towards women, and that these stereotypes arose out of ignorance. Of course, in both groups there are a minority of people who fit the stereotype (and as I was trying to argue in another post, we shouldn’t pretend such people don’t exist on either side) but blanket generalisations about any group of people should be avoided. In fact, Aly said, both groups were equally worried about the rise of terrorism and fanatics, and consequently have more in common than they might realise.

I believe that treating detainees badly will merely ensure that ignorance and misunderstanding are perpetuated, and will give terrorists an excuse to continue behaving badly in return.