As a journalist at LinuxWorld Australia:
It took three years of legal debate before Hew Raymond Griffiths, an Australian resident and British citizen, was surrendered to the U.S. for his involvement in the international software piracy group Drink or Die (DoD).
Griffiths was extradited on February 20 this year, and pleaded guilty to one count of conspiracy to commit criminal copyright infringement, and one count of criminal copyright infringement, before the Virginian District Court on April 20. Potentially facing a maximum sentence of 10 years in an American prison and a $US500,000 fine, he now awaits sentencing on June 22.
To unravel the implications of Griffiths' extradition for Australian content users and owners, Liz Tay enlisted the legal expertise of Nick Abrahams, a corporate and commercial lawyer of international law firm, Deacons, and president of the Communications and Media Law Association in Australia.
What do you think is most significant about the Hew Griffiths case?
To my knowledge this is the first case of IP [intellectual property] theft resulting in an extradition.
It really shows that you can't hide from IP prosecution, and I think it's been a wake-up call to internet users, because often there's a belief that if you place your servers in a particular jurisdiction that has very little regulation and IP protection and so forth, then somehow that will shield you from liability and you can then go on to live somewhere else.
I think what the Hew Griffiths case shows is that you do need to be very aware that particularly in the U.S., where the number one export is intellectual property, they are incredibly vigilant, and this has been a very significant coup for them and I see this as the start of more international prosecution for cyber-related crime.
How was the extradition made possible?
We had the free trade agreement with the U.S. a few years ago, which was great for Australia in a number of respects, and it also had with it a significant obligation on Australia to change its copyright laws to give more protection to copyright owners.
What that means is now there's a lot more criminality, or criminal statute, covering intellectual property from copyright theft, which we didn't have before. That's important because we're now a bit more harmonised with the U.S.
Does the Free Trade Agreement mean that we will be seeing more Australians being extradited to the U.S. on IP charges?
We now have a lot more criminal penalty for IP theft as a result of the Free Trade Agreement, so the potential for this to be used more broadly is certainly there.
How does extradition work?
It's basically a part of international law. In Australia, in order for the Australian government to extradite someone to another country in relation to a crime, then the Australian government is only allowed to do that if the crime that's alleged in another country is actually a crime in Australia as well.
Take something like murder. Quite clearly, murder is a crime in America, and murder is a crime in Australia. So if the U.S. government says, 'there's someone who we allege murdered someone', then there would be the required dual criminality, because murder is a crime in both countries.
For the purpose of extradition, what is critical is being able to establish this concept of dual criminality. That means that what the alleged perpetrator has done in Australia, the U.S. is alleging that is a crime in the U.S. In order for Australia to extradite him, there has to be a similar crime in Australia.
I guess the clearest way to exemplify that is with the 'I Love You" virus that was around a few years ago. The guy who created that virus was based in the Philippines and the U.S. tried to extradite him, but couldn't, because in the Philippines, they didn't have a statute that made the creation of viruses a criminal act, so consequently he was not able to be extradited.
This dual criminality thing is an important issue; now in Australia, we have quite a lot of IP-related thefts and actions are subject for criminal penalties, so consequently, it's a lot easier for other countries like the U.S. to come to Australia and request extradition.
Does the dual criminality requirement mean that IP thieves are safe from prosecution in certain countries?
It's really a distinction between the jurisdiction where the offence originated, and the jurisdiction where the crime took place.
In the Hew Griffiths case, the U.S. said the crime actually occurred in the U.S. because it was U.S. companies that had their copyright stolen. So the fact that Hew Griffiths was sitting with his computer on the Central Coast of Australia was not relevant to them.
The U.S. is where the crime takes effect, and that was the way he was charged. It's important also to recognize that what he did was actually contrary to Australian copyright law.
If Hew Griffiths was living in the Philippines for example, the question would be: do the Filipino laws say that what he was doing was a crime? If there is a criminal statute in relation to that, there would be the required dual criminality for the crime, in the Philippines and the U.S., so the Filipino government would hand him over.
However, if it is not a crime to do what he has done, say with the "I Love You" virus, where the statute had not caught up with the technology, the "I Love You" guy was not extradited. It all depends on what is the extent of criminality for IP theft in each relevant country. And most developed countries are now heading towards having
What does the Hew Griffiths case mean for copyright owners?
I think this case is extraordinary, and is a wake up call to copyright pirates, and I think it has certainly been welcomed by the major copyright owners, particularly software companies and the entertainment industry.
I think the American government is delighted by what's happened, and it should definitely cause people in Australia who are engaged in pirating to really reconsider, because it does mean that you won't pay though the Australian criminal justice system; you'll pay through the American criminal justice system.
Are there any other issues that still stand for content owners?
I think content owners and copyright owners are relatively happy with where the Australia copyright law has gone. There were recent reforms to it and those reforms sought to strengthen the rights of copyright holders and also to recognize that there are now some different technologies which challenge the old copyright laws.
So we had things like the iPod amendment, which basically allowed people to use iPods, whereas previously to the amendment, the use to iPod was an infringement.
With the constant march of content-copying technology, do you think the model of content ownership is realistic?
There is certainly a movement out there that is suggesting that copyright is outdated and there needs to be a fundamental change of thinking on that. [But] I think it's going to be a very long time before we see such a change, if at all.
I get back to the idea that America's number one export is intellectual property, so there's a massive amount of money at stake, and [a lot of] investment in the current copyright regime.
Simply because technology allows people to copy a lot more easily does not necessarily mean that they should be allowed to do that. So while the ease of copying has become much greater, the business model around the ownership of copyright is so well entrenched, and there's so much money involved, that it's hard to imagine how you move to a different environment.
Are we likely to see any changes to current copyright regulations in the future?
What you'll end up seeing, I think, is a lot more flexibility around the current business model. YouTube is a good example of that, I think. YouTube had a lot of material up there that was other people's intellectual property, most notably music and also TV and film material. Basically YouTube has become very successful and done a couple of deals with major copyright owners which allows YouTube to use their material.
So I think the underlying legal structure of copyright is here to stay, but what you'll see is a movement away from the traditional approaches of copyright licensing and so forth. It's a move away from the traditional 'pay for a whole CD' idea, and more to what's happening to YouTube, where users are actually able to use the material, and YouTube ends up paying a royalty to the music company.
Would extradition have worked in reverse? Say, if a U.S. software pirate had stolen Australian intellectual property, would the pirate have been extradited and sentenced here?
I'm not an expert on U.S. extradition law, but certainly the dual criminality is there, so I suspect that it is likely. Because there is that dual criminality, then fundamentally it seems like that could work in the reverse.
