Illusive Mind

Today in The Age, I read about the case of Hew Griffiths:

BEFORE he was extradited to the United States, Hew Griffiths, from Berkeley Vale in NSW, had never even set foot in America. But he had pirated software produced by American companies.

Now, having been given up to the US by former justice minister Chris Ellison, Griffiths, 44, is in a Virginia cell, facing up to 10 years in an American prison after a guilty plea late last month.

Griffiths’ case - involving one of the first extraditions for intellectual property crime - has been a triumph for US authorities, demonstrating their ability to enforce US laws protecting US companies against Australians in Australia, with the co-operation of the Australian Government.

If Hew had cracked software whose headquarters was in Thailand, would the Australian government be shipping him off to Bangkok to face ten years in a Thai jail? Probably not. The reason is Australia does not have a cowardly and sycophantic relationship with Thailand as we do with the US.

Australia lacks the defense forces or the defense budget to realistically counter any future threat from our surrounding Asian neighbours. Our entire defense strategy seems to involve being as cosy to America as possible. (eg. Australia is the only other advanced country that refuses to sign the Kyoto protocol, even though we have met the emission targets).

As Richard Ackland writes, (’Another one sacrificed in the name of the alliance‘):

It is a shocking case. The governmental cravenness is unwarranted. It means that if Griffiths is convicted in the US it is likely he will never be able to return to Australia, where he has lived all but seven years of his life. The Americans have provided him with a one-way travel document to the US.

But that’s the price of keeping in sweet with our great and powerful friend.

The case of Hew Griffiths reeks of the same injustice visited upon Australian citizen, David Hicks. No civil liberty is too precious that our government will not violate it in order to lend legitimacy to the US, legitimacy it tends to desperately need.

Australia distinguishes itself from the UK, which refused to subject their citizens to the farce of the military tribunal system and who has also dealt with other members of the pirate group (DrinkorDie) under their own laws.

Legal Aid Commission lawyer, Antony Townsden, criticised Australian authorities:

“A number of people have been charged under British law and have been dealt with in their own country, and Mr Griffiths is the only one where extradition was sought. One has to ask whether we have abrogated our own responsibilities to properly deal with Mr Griffiths under Australian law.”

Perhaps the US only sought the extradition of Griffiths because he happens to be an ‘absorbed person’. That is, “having come from Britain at age seven. He is 44 and until he was arrested, lived with his aged father on the NSW Central Coast. Since arriving here he has not travelled outside Australia and has never applied for an Australian passport.”

The US may well know how the Australian government feels about people living inthis country that don’t bother to become citizens. That is, they cruelly exploit them, as was the case of Robert Jovicic, who was deported to Serbia, a country his father was born but he himself had never been to. Griffiths’ citizenship is not of vital importance though because this country shits on citizens and non-citizens alike.

There are two distinct issues in the case of Hew Griffiths. One is the criminality of copywright infringment. The DrinkorDie group, of which Griffiths is allegedly the ringleader has supposedly cost US companies “$US50 million ($A60 million), if legal sales were substituted for illegal downloads undertaken through Drink or Die”.

For this crime Griffiths faces a possible 10-year jail term (maximum), and a fine of $US500,000. “He has probably already spent more time in prison than any person convicted of a copyright offence in Australia.” Bloggers such as Mark @ stoush.net, clearly take issue with the extent of criminalization and the resources spent prosecuting people for such crimes:

Copyright violations are victimless crimes: they stop copyright holders from profiting from their copyright holdings, but don’t actively harm them. Yes, there may be struggling musicians who are forced to get day jobs, but it’s the copyright laws themselves that victimise people, from kids who have to get part time jobs to line the pockets of musicians and movie moguls, to the people who are denied access to medical, cultural and literary products because of the cost, to Hew Griffiths, an unassuming man, who has been torn from his home by federal agents and removed to a US jail and now is threatened with ten years in prison for fiddling with bits of code on a computer screen and then giving other people the same fiddled-with code.

This issue is distinct from the locality of internet crime. It seems to offend common sense that you could be tried for crimes in a country you have never been to. The US won the extradition appeal by arguing that crimes had taken place in the US and not on Griffiths’ home computer in Australia.

The US had appealed against a decision by magistrate Daniel Reiss to release Griffiths from jail in March, after he found there was no extraditable offence. Justice Peter Jacobson said the magistrate had “misdirected” himself, possibly because he held the view that the alleged crimes had been committed in Australia - from Griffiths’s home computer - when case law and the indictment showed it was committed in the US.

The US alleged Griffiths was one of the few who controlled access to the so-called drop site, located on a computer network at the Massachusetts Institute of Technology.

These issues are similarly identified by skepticlawyer at catallaxyfiles.com

From a classical liberal perspective, this raises two issues. First is the utter stupidity of much intellectual property law, viz, is intellectual property deserving of the same protections as other forms of property? Second, what are we to make of US attempts to control internet use across state borders? Griffiths did his downloading in Australia, and has never set foot in the US.

Gary McKinnon, “the hacker who entered various U.S. military and NASA computers in 2001 and 2002″ faces a similar instance of this idea in that, he faces extradition to the US for computer crimes he committed from another country.

So whether the accused is a ‘foreign terrorist’ or a copyright infringer the issue of how you define the location of internet based crime remains the same. It may be a matter of degrees (as IPKat argues), perhaps it is right to extradite someone for the ‘greatest millitary computer hack of all time’, but not for ‘cracking software’.

It is a worrying but perhaps indicative sign that the profit concerns of multi-national corporations trump the rights of individuals and even the sovereignty of nation states. Australia again, leads the world in surrendering to the US, willingly in this case, but what will happen in the future to foreign nationals whose governments may be less co-operative? How much further will the nation-state erode to serve the interests of multi-natoinals? Say, Swedish nationals?

Griffiths case is another reason for all Australians to feel unsettled, and ashamed at the actions of their government. The comparison to David Hicks, is one easily arrived at, eg. The David Hicks of the Copyright World?, or at larvatusprodeo.net:

If you think David Hicks is the only Australian that the Howard government has stitched up and gladly handed over the United States on a dodgy legal pretext

Unlike the Hicks case, the government has not used the ‘he can’t be tried here’ defense. Griffiths can be tried under the Australian Copyright Act, but the relevant minister, Chris Ellison has just failed to refuse extradition.

The NSW Attorney-General, Bob Debus, wrote to Ruddock in June 2005 making the same argument, that extradition is inappropriate in this case. These pleas went nowhere and yet there is no explanation why this man cannot be charged in Australia and why of all those arrested, he is the only one the Americans want in captivity on their soil.

Legal Eagle at legalsoapbox.blogspot.com, argues that the extradition is baseless under the law:

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.

It is a safe bet that Griffiths is being singled so that he can be made an example of for political reasons, and Chris Ellison, is all to happy to comply. If you have a problem with this, as I do, you might like to shoot Chris an email (senator.ellison@aph.gov.au) as I will.

I can only hope that consistent with Kevin Rudd’s talk of a ‘robust alliance’, this sort of thing would not happen should Labor take power later this year.

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