Property and the body

The thing I love about this blogging gig is coming across other interesting blogs and people. Can I recommend that you read this post over at Balneus by Dave Bath about property in body parts?

The EU generally prohibits sale for profit of body parts, and Dave queries if there should be an exception for the sale of items such as hair for profit. He makes the good point that real hair can be used for wigs for people suffering from alopecia or baldness for other medical reasons (eg, undergoing chemotherapy). I know that some ladies in India sell their hair to be used in hair extensions for Western women. Well, if it keeps the family fed and healthy, why not?

It’s an interesting question. Coincidentally, the other day someone sent me this crazy site where you can purportedly sell your DNA for profit. The idea makes me feel squeamish. No way anyone’s gettin’ near my DNA. It worries me that companies might seek to patent people’s DNA and use the patent to monopolise the pharmaceutical benefits which might be derived from it. Sound neurotic and far-fetched? Uh-uh. Have a look at the case down below and you’ll see why lawyers become such neurotic beasts – they see the worst behaviour from everyone. Anyway, for reasons I will discuss, the sale of DNA would not be legal in Victoria.

It should be noted that, generally speaking, neither the selling nor buying of human tissue is legal in Victoria: ss 38(1) and 39(1), Human Tissue Act 1982 (Vic). However, there is an exception in s 39(2) which provides that the Minister may give a permit to a person to buy human tissue for profit in certain circumstances. Tissue is defined to mean “an organ, or part, of a human body or a substance extracted from, or from a part of, the human body.” Therefore even the sale of human hair or fingernails would not be legal in this State, unless a Minister was prepared to licence someone to purchase hair. Sperm, ova and foetal tissue are not covered by the provisions dealing with donation of human tissue. These types of tissue are covered by the Infertility Treatment Act 1995 (Vic).

As I said in comments at Dave’s site, there’s a famous case called Moore v Regents of the University of California (1990) 793 P 2d 479 about property in body parts. Nasty people like me make poor students write essays about the case.

Moore was treated for leukaemia at the University of California Medical Centre. His spleen was removed as part of his medical treatment. His doctor and a researcher established a “cell line” with his spleen cells. Because the cells were cancerous, they produced a particular protein in large quantities for an indefinite period. They patented the cell line and made a profit. Moore sued them, saying that he had not consented to the use of his cells in this way.

One of Moore’s claims was that the spleen cells were his “property”, and that by using them without his consent, the University had committed the tort of conversion. They had been detached from him, and therefore were separate from him – did this mean they could be owned by him, as they were derived from him? A majority of the Supreme Court of California said that they were not Moore’s property. However, the University was found to have breached its fiduciary duty towards Moore (namely its duty not to profit at his expense without obtaining his consent).

I was trying to think why I find the sale of human hair less problematic than the sale of human DNA. My thought is that there is a distinction between cells which are living at the point of excision from the body (cell lines, ova, sperm, foetuses, blood etc) and cells which are dead at the point of excision from the body (hair, toenails etc).

Still, I think the only way you could safely allow for-profit use of hair and toenail clippings is to create an express exception for it: eg, “a prohibition on making the human body and its parts as such a source of financial gain, excepting toenail clippings and hair.” What are your thoughts?

P.S. Just realised that this is my first post with a category of “property”. I can’t believe it’s taken me this long to post about property law.

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.

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.

Sharing mp3s on the Web

Just found this interesting blog post on the Full Federal Court’s recent decision in Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187. The decision concerned a website set up with links which allowed people to download mp3s. The Federal Court found that the website contravened Australian copyright law. The author of the post is an IP law expert, and she gives a measured analysis of the case, saying that all is not lost for those who wish to share mp3s on the ‘net.