The extradition and sentencing of Hew Griffiths

From New Matlida (Subscription required). I didn’t know any of this – but I should have.

On 22 June 2007, Australian resident Hew Griffiths is due to be sentenced in a US Federal Court in Virginia. He is charged with conspiracy to infringe US copyright, an act committed from his Australian home. Having pleaded guilty to this crime, he is likely to be sentenced to 10 years in an American jail. But prior to his sentencing, Griffiths had never been to America. . . .

Griffiths, who was extradited to the US last month, has already served three years in an Australian jail fighting the extradition proceedings more time than he would have served had he simply been tried for this crime (as he should have been) under Australian law. . . .

. . . This man is not a dangerous criminal. At the very worst, he is a thief but even this is a stretch as he never actually stole anything himself. What he actually did was crack codes that enabled people to download for free (steal) copyright protected software on games.

Griffiths never made any money from his venture. For him and his cyber-gang Drink or Die it was a game. But, with copyright infringement high on Americas corporate radar, Drink or Die was targeted for exemplary punishment by the US Department of Justice. . . .

Drink or Die was an international group of internet thrill seekers or warez pirates who took delight in circumventing American software protection codes (but who never personally profited from their escapades). They knew what they were doing was illegal they were indirectly robbing American copyright holders of royalties earned through the legal purchase of software. . . . While he wasnt the only person arrested in the US-orchestrated sting on Drink or Die, he was the only person that the Americans sought to extradite to the US; all other members from Britain, France and elsewhere were simply charged, tried and sentenced in their own country, under national laws, and are now free.

Hew Griffiths is the only member languishing in a foreign prison with, no doubt, many more years to serve.

So why wasnt Griffiths simply charged and tried in his home country, under local laws? Australia has perfectly sound copyright laws under which active piracy of the kind perpetrated by Griffiths would allow companies that felt damaged by his actions to bring a case and seek civil damages. Indeed, Australia has the very same framework for punishing copyright violations as the US, thanks to the Australia-US Free Trade Agreement (AUSFTA). Under that agreement, Australia agreed to completely harmonise our copyright law with the US Digital Millennium Copyright Act, which counts copyright infringement as a criminal act. . . .

The United States Government wanted to make an example out of Drink or Die members. It wanted to show that the long arm of the American law could seek out and punish copyright violators wherever they may be. Sure, Drink or Die members could be charged in their home countries (as the majority were). But imagine the message that would be sent to potential pirates if offenders were actually extradited to the US to face trial and much harsher sentences.

The tricky bit would be convincing governments to hand over their citizens for prosecution in a foreign country. This is a big ask for a number of reasons. It would reflect poorly on a governments confidence in its own legal institutions. Moreover, people arrested for committing a crime in their home country have a right to be imprisoned close to their family members, not in a foreign country. The US didnt even bother asking other countries for extradition proceedings, as it knew the response would be a resounding no. . . .

Griffiths was shipped to the US in April and was to stand trial on charges of copyright infringement and conspiracy in May. But Griffiths negotiated a plea bargain settlement and on 20 April it was announced that he had entered a plea of guilty to the charge of conspiracy to commit copyright infringement. The charge of actual infringement was dropped so no actual economic damage is alleged by the US. Awaiting sentencing on June 22, he faces a jail term of up to 10 years, plus fines of up to $500,000. If convicted he will probably never be allowed back into Australia again, a place he has called home for 37 years. . . .

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38 Responses to The extradition and sentencing of Hew Griffiths

  1. Graham Young says:

    Very interesting Nicholas, but parts of the article appear a bit tendentious. As far as I know it is the courts that decide whether someone will be extradited or not rather than the government, and if he is an Australian citizen I can’t see why he wouldn’t be allowed back to Australia after serving time.

    Both of which points make me wonder if anything material has been left out of the New Matilda article.

  2. Guise says:

    No, the essential facts are there – the overriding one being that AUSFTA requires changes to Australian copyright laws which, inter alia, will turn what are currently civil offences and penalties under the Copyright Act into criminal ones. If Griffiths had been charged under current Australian law (and it’s by no means certain that he could be) the worst result would have been fines and other penalties. To the global media conglomerates fighting a pointless regard action against the technology the disseminate themselves, this just ain’t good enough.

    And I can’t help but feel that Griffiths’ residency status was a factor in the Government’s decision to cut him loose.

  3. Graham Young is wrong.

    The courts decide whether someone is liable to be extradited. If the person is found by the courts to be liable to be extradited, then a Minister decides whether the person will be extradited.

  4. Perhaps I should’ve mentioned earlier that I blogged about this as long ago as APR 27: http://stumblng.tumblr.com/post/1273111

  5. Graham,

    The article is indeed tendentious and partly for that reason I excised the most tendentious or sloganeering parts of it. But the facts on their face are pretty telling – and not at all out of character with the way the IP game is played in the US.

  6. Ken Parish says:

    Both the New Matilda article and Guise’s comment contain major misconceptions about the nature of extradition and the facts of the Hew Griffiths case.

    As Graham Young suggests above, extradition involves a court process, not merely a discretionary decision where the executive government decides whether to surrender a person for trial in a foreign country. Thus the assertion in the NM article that “The tricky bit would be convincing governments to hand over their citizens for prosecution in a foreign country” is quite misleading. The American prosecutors had to convince Australian judges (not politicians) that the requirements for extradition were met.

    The requirements for “extradition eligibility” do not involve any subjective political evaluation on the part of the court. While there is certainly a political discretion as to whether to actually extradite an eligible person, that discretion is generally exercised in favour of extradtion to free democratic countries with which Australia has extradition treaties e.g. the US. It would be quite extraordinary for the Australian Minister to refuse an extradition request from a country like the US unless it involved a “political offence” or a crime carrying the death penalty. Clearly neither of those factors applied in the Griffiths case. There is nothing remarkable about the A-G consenting to his extradition, indeed as I say it would have been extraordinary had he not done so. It certainly does not connote any special dealing or dodginess as the NM article seems to suggest.

    Although Griffiths managed to convince a Federal Magistrate at first instance to deny extradition, his reasoning was subsequently held to be seriously erroneous. On review by Jacobson J in the Federal Court, it was held that Griffiths WAS eligible for extradition. An appeal by Griffiths to the Full Court of the Federal Court was dismissed. Central to both the review and the Full Court appeal was the question of whether the offence with which Griffiths was charged was a crime in Australia (commenter Guie suggests that there is doubt about this). One of the elements of which a judge must be satisfied is the “double criminality” test i.e. that the extradition offence is a crime both in the country seeking extradtion and in Australia. Both Jacobson J and the Full Federal Court held that it WAS. Griffiths was charged with conspiracy to commit a breach of section 132 of the Copyright Act. Although section 132 is in its terms confined to breaches committed within Australia (and arguably the substantive breaches occurred at least partly overseas), the Court held that a conspiracy to commit such a crime could nevertheless be constituted by conduct occurring between various people in various countries. Jacobson J’s conclusion to that effect is quite conventional and uncontroversial, and was upheld unanimously by the Full Court.

    Nor is it true, as Guise asserts, that “the worst result would have been fines and other penalties”. Breach of section 132 (and conspiracy to commit it) carries a maximum prison term of 5 years. Griffiths’ conduct as alleged by the US prosecutor appears to be a very serious breach and might well have attracted close to the maximum had it been tried in Australia. The NM article suggests that griffiths was unfairly singled out, where other participants in Drink or Die were allowed to be charged and tried under domestic law in their own countries. What this ignores is that the US prosecutor alleges that Griffiths was the ring-leader (or at least co-leader) of Drink or Die. In those circumstances, it is hardly surprising that the US sought his extradition. Moreover, as I mentioned above, substantive breach of section 132 is expressly confined to conduct within Australia, and arguably at least some of the conduct constituting the substantive breach occurred overseas. Thus perhaps Griffiths could not have been convicted under section 132 per se. He could certainly have been charged with conspiracy to breach section 132, however, as the Federal Court found, but that would probably have required either the extradition to Australia or the voluntary co-operation of Griffiths’ overseas co-conspirators. It is likely that this logistical problem would not have existed with British Drink or Die defendants i.e. unlike them, it is likely that Griffiths could in a practical sense only be dealt with and convicted by being extradited to the US.

    Guise is also confused in asserting (at least inferentially) that the Americans were only able to extradite Griffiths because of Australia’s harmonisation of its copyright laws with those of the US following our accession to the AUSFTA. In fact Griffiths was extradited on the basis that his alleged conduct amounted to a conspiracy to breach section 132 in its pre-AUSFTA form.

    Finally, here is an extract from Jacobson J’s judgment that gives some idea of the scope of Griffiths’ activities (to which he has now entered a guilty plea). It is difficult to see how he could reasonably be seen as a martyr for freedom who has been unfairly dealt with:

    38 Paragraphs 2 to 9 of the indictment set out particulars of the charge of conspiracy. Paragraph 2 states that Mr Griffiths and others, including the co-conspirators named in paragraph 1, were members of an internet software piracy organisation known as “Drink or Die” (“DOD”). Paragraph 2 states that DOD was a highly structured criminal organisation devoted to the unauthorised reproduction and distribution of copyright software over the Internet. Paragraph 2 also states that DOD sought to achieve a reputation as the fastest provider of the highest quality application and utility software, including Microsoft, to an underground internet piracy community known as “the warez scene”.

    39 Paragraph 3 of the indictment provides particulars of how the conspiracy was carried out and of Mr Griffiths involvement in it. The various stages in the theft and distribution of the copyright materials are described. These consist of a series of acts by DOD members commencing with the work of “suppliers” who are said to upload new software on to DODs “drop site” prior to the manufacturers public release date. The drop site is described as a secure computer site hosted by a DOD member on the computer network of the Massachusetts Institute of Technology in Boston, access to which is said to have been strictly controlled by Mr Griffiths and other high level DOD members through security measures including password protection.

    40 Paragraph 3 of the indictment goes on to say that other DOD members known as “crackers” would remove the software from the drop site and use their skills to “crack” the softwares embedded copyright protection.

    41 The remaining stages in the conspiracy are also described in paragraph 3. They consist of the work of “testers” and “couriers” who are said to have prepared the pirated work for release and distribution to DOD affiliated computer storage sites throughout the world.

    42 Paragraph 4 of the indictment states that it was part of the conspiracy that when newly “cracked”, or pirated software was released, a DOD leader, usually Mr Griffiths, would send an email to other DOD staff members announcing the release.

    43 Paragraph 4 also refers to monthly summary reports maintained by DOD setting out details of the releases of the pirated materials. The reports from November 2000 to
    11 December 2001 are said to indicate that DOD cracked and released more than 275 software programs worth more than $US 1,000,000.

    44 Paragraph 5 of the indictment states that DOD was a highly structured organisation consisting of approximately 60 persons, the leaders of which had ultimate authority over all aspect of DODs work. Mr Griffiths is said to have been a long time DOD member and to have become a co-leader of DOD from early 2001.

    45 Paragraph 6 states that it was a further part of the conspiracy that DOD staff members would communicate about the groups illegal activities with other DOD members through secure internet chat sites. Mr Griffiths role in facilitating communication between DOD members is described.

    46 Paragraph 7 states that it was a further part of the conspiracy that to reward its members DOD maintained a number of sites known as “leech sites” from which DOD members could download the many thousands of pirated software games, movies and music that were available to DOD members. Access to those sites is said to have been controlled by DODs leadership including Mr Griffiths.

    47 Paragraph 8 states that it was a part of the conspiracy that DODs file transfer sites were protected by security mechanisms to ensure that only authorised users could gain access. As leader, Mr Griffiths is said to have overseen the maintenance and operation of the sites.

    48 Paragraph 9 refers, by way of further particulars of the conspiracy, to a telephone conversation held on 9 September 2001 between Mr Griffiths and other DOD members. Mr Griffiths is said to have led the discussion on numerous aspects of DODs copyright piracy activities.

    49 The indictment then sets out five overt acts of the alleged conspiracy. Importantly, all of the overt acts are said to have been committed in Virginia. It is unnecessary to set out the overt acts. Each specifies a particular act or acts forming part of DODs piracy activities in which Mr Griffiths is said to have participated.

  7. Bannerman says:

    It’s amazing, I find, that these long-winded US court indictments can be phrased to describe the devil incarnate, reaping the souls of the defenceless at rates no other supernatural being could ever possibly approximate.

    Personally, I get the feeling that there’s more to this issue than some software authors being cheated out of a few thousand dollars by a group of thrill-seekers. The question which has to be posed is this: Why was only one individual, out of a supposedly known and tracked global collective, treated to the fondnesses of the American legal system? KP’s treatise clearly indicates the courts knew of members in the UK and France, both of whom would have similar or same extradition treaties with the US as does Australia. Why then were the perpetrators fingered in those countries not extradicted?

    This particular pond is far deeper and darker, I postulate, than the legal surface ripples indicate.

  8. Ken Parish says:

    We’re not talking about “a few thousand dollars” in pirated software, but millions.

    Had US authorities sought the extradition of UK members of Drink or Die, no doubt extradition would have occurred. US authorities only sought extradition of Griffiths because he was the ringleader. UK members WERE prosecuted under UK law. Although I’m guessing, I suggested that, in addition to Griffiths being the ringleader, there may well have been logistical problems with witnesses which made it more difficult to charge and convict Griffiths in Australia under our domestic law than for british defendants. In any event, there is nothing remotely surprising or even slightly unusual about prosecutors choosing to proceed more aggressively against ringleaders in criminal conspiracies than against lower level associates. Why would you think there is something “deeper and darker” about this?

  9. Ken Parish says:

    Oh yes, another error (or probably more accurately, deliberately misleading claim) in the NM article is this:

    “The charge of actual infringement was dropped so no actual economic damage is alleged by the US.”

    The second part of this sentence does not follow from the first. As can be seen from the facts alleged against Griffiths (extracted in my previous long comment), he was the ringleader of the conspiracy but apparently did not himself either crack the software or distribute it. Thus there might well have been problems with convicting him of the substantive offence of copyright breach (as opposed to conspiracy to commit it). The fact that they agreed to a bargain where Griffiths agreed to plead guilty to conspiracy, with the substantive offence charge being dropped, in no way suggests that no economic damage was caused or alleged. Griffiths was the leader of a group which cracked and distributed software worth at least one million dollars. Presumably at least some of those who downloaded it for free would otherwise have bought it legally. Moreover, proof of economic loss is not an element either of the criminal offences or civil causes of action relating to breach of copyright.

  10. Ken Parish says:

    While I’m engaging in comment box obsessiveness, I’ll also deal with this comment by Nicholas:

    “But the facts on their face are pretty telling – and not at all out of character with the way the IP game is played in the US.”

    I certainly agree that the US music industry especially often seems to engage in excessively aggressive litigation overkill, for example by suing or charging ordinary consumer downloaders of pirated music (as opposed to principals like the proprietors of systems like Kazaa and Morpheus, who richly deserve everything they get). Griffiths was not an ordinary consumer, he was the principal of a major software piracy outfit. Are you seriously suggesting that software companies should simply sit by idly while such groups steal their products and distribute them for free?

  11. Guise says:

    Ken, I happily stand corrected on some points – but I still think the whole thing stinks, in part because it is based on the assumption that every pirated version of a piece of software (or a song, or a DVD) represents revenue lost to the copyright owner. Not the case. Yet this flawed assumption leads to assertions that an offence cost some company $X million, enabling the gross exageration of the nature and scale of the offence. And yes, I miss the original Napster.

  12. Ken,

    Thanks very much for the lengthy clarifications. I remain somewhat aghast that the authors of the New Matilda piece edited out so much of the context which incriminates Griffiths – though as I said the tendentiousness of the piece was transparent from the start.

    All that having been said I’d be interested in whether the authors’ claim that the perpetrators got no material benefits from their activity is correct. It sounds from what you say that they did get a benefit. In this situation I don’t have a great problem with throwing the book at them – though the action of the extradition system appears inhumane to me. I think it is not humane for them to be incarcerated so far from home.

    The problem is that I’m hostile to excessive IP and there’s a lot of it about. Now those who break IP law are not so scrupulous that I would argue that all their breaches of IP are economically beneficial, but then I have no problem with poor counries and poor people ripping literally millions of dollars off legitimate IP holders in the West. Certainly some highly respectable economists argue that we’d be much better off with a complete elimination of intellectual monopoly – a bit stronger than I’d argue admittedly, but nevertheless worth thinking about.

    So it’s not so black and white for me. And I don’t agree at all with your comment that “the proprietors of systems like Kazaa and Morpheus” deserve everything they get. I don’t know anything about Morpheus, and I also understand that Kazaa is/was run by some unsavoury types. But as far as making and offering Kazaa for distribution, it’s a file sharing system. It’s used for IP compliant and IP non-compliant purposes and file sharing is a potentially highly valuable technology – like VCRs which various interests in the media tried to curtail when it arrived on the scene.

    So the whole thing is not (for me) cut and dried and three years in an Australian jail looks, on the face of it anyway to be sufficient punishment.

  13. Bannerman says:

    Riddle me this, Beakman. Why would Australia surrender one of its own for trial overseas and other like-structured nations involved not? That’s what I see that’s ‘deeper and darker’. Actually, it’s all in my original comment.

  14. James Farrell says:

    …it is likely that Griffiths could in a practical sense only be dealt with and convicted by being extradited to the US.

    OK, fair enough.

    …the extradition system appears inhumane to me. I think it is not humane for them to be incarcerated so far from home.

    And that sounds reasonable. Do, or could, extradition treaties have a mechanism whereby Country A hands over the accused criminal to Country B on condition that he is returned to Country A to serve his sentence if convicted (at least if he is a citizen of Country A)? I’m sure this comes up all this time, especially in cases involving the death penalty, but I don’t know the answer.

    Whether we should regard it as stealing is an interesting ethical issue given the zero marginal cost. Obviously if the pirates sell the information to people who would otherwise have paid the commercial price, it is. If they just give it away to people who would not otherwise have bought it, it’s a victimless crime, except to the extent that resources are expended in policing it. The problem is, how do the pirates know who would have paid the commercial price and who would not? And what about the intermediate case, where they sell it to clients who would not have paid the commercial price?

  15. Brian Howard says:

    One participant in NM has made a very good point by highlighting the fact that criminal liability can only occur between a state and the legal subjects of that state.

    I choose to have nothing to do with many foreign countries, nor do I choose to even visit many foreign states because I find their laws or punishment repugnant to my personal beliefs.

    How then is it possible for me to be subjected to trial and excessive punishment in a foreign state merely because I acted in a way which is considered criminal in that foreign state as well as the country in which I live?

    Let me give you an example:-

    Trading diamonds without a licence is illegal in most countries of the world.

    A person (A) from country A telephones me in Sydney and offers to sell me diamonds. In country A the penalty for diamond dealing without a licence is 25 years imprisonment. Person A has no licence.

    I know a man (B) in country B who mines diamonds but has no licence to trade in diamonds since he is obliged to sell all his stones to the central bank of his country. Diamond dealing without a licence carries a penalty of 50 years in country B. Person B wants to buy diamonds to increase his sales.

    I have never visited country A or B since I find their laws repugnant.

    I instruct my bankers to pay person A in a free country (eg Holland) in exchange for delivery of diamonds into a vault in Amsterdam. Person B then arrives in Amsterdam to inspect the stones and he buys them at a profit.

    The Dutch authorities encourage such transactions and facilitate the transaction.

    I repatriate the profits and pay my taxes on the income.

    Country A and B have extradition agreements with Australia and both seek my extradition because I was the “ringleader” in a conspiracy to “trade diamonds” without a licence” which constitutes a crime in all three countries.

    According to Jacobsen J’s rationale I would be extradited and I would serve a minimum of 25 years imprisonment in a country which I both despise and abhor.

    Many transactions occur in precisely the above manner and Australian authorities have no problem with the concept, PROVIDED I do not trade in diamonds on Australian soil, so why should I be extradited? Why should i serve ANY sentence, let alone a sentence in a foreign country?

  16. Geoff Honnor says:

    Calm yourselves. He got 51 months imprisonment so will probably be released within a year. To be frank, anyone choosing the appalling nick of “Bandido” in order to participate in a Warez group that thought “Drink or Die” was a cool name, should have got much longer on infraction of good taste grounds alone.

    Your puzzlement at the New Matilda piece, Nicholas, rather overlooks the fact that it is clearly predicated on the assumption that stealing from an American capitalist entity is, by definition, hardly problematic. Even less so if the entity in question is Microsoft. The Warez boys tend to think of themselves as nerdy yet deadly Robin Hoods – or Hoodz – so it all hangs together quite well. Particularly if you factor in Bush and Howard as the Sheriff of Nottingham and Guy of Gisborne, respectively

    Based on James Farrell’s excellent advice, I’ve asked someone to shoplift some fine Egyptian cotton bed linen from David Jones, on the basis that I would never have considered buying it myself.

    Finally:

    “Certainly some highly respectable economists argue that wed be much better off with a complete elimination of intellectual monopoly – a bit stronger than Id argue admittedly, but nevertheless worth thinking about.”

    Presumably, they’d make a highly litigious exception in respect of any of their
    highly respectable published research being claimed without attribution by otherwise deserving third world worthies…..

  17. Geoff I guess your points are amusing, but I don’t think they’re very telling. Rather black and white whereas IP is not like normal property where theft is a zero sum transfer to the thief. I could write the one liners against what I’m saying easily enough but you’ve already done that.

    Suffice it to say that the productivity and freedom of our modern lives depend crucially not just on there being incentives to innovate but also freedom to imitate and where one draws the line is a tricky matter.

    On your final point, it’s hardly an indication of hypocrisy to argue against IP and yet not to give one’s own away. I recall Steele Hall arguing against – and voting against – a pay rise for politicians but being clear that this didn’t mean that he was going to give away his pay rise if paid. That is a perfectly principled position.

    However in point of fact if you have a look at the link I provided you’ll find that the whole book is given away. It’s a marvellous book by the way. Not only does it make it’s points with clarity and economy – I discovered the book after having written something similar to its first four pages – having taken about ten pages to say the same thing – I couldn’t find a single cheap shot in it.

  18. James Farrell says:

    Based on James Farrells excellent advice, Ive asked someone to shoplift some fine Egyptian cotton bed linen from David Jones, on the basis that I would never have considered buying it myself.

    Look up ‘zero marginal cost’.

  19. KC says:

    Firstly have a look at the indictment handed down against Hew. One count of copyrighy infringement and one count of conspiracy to commit copyright infringement. It is very vague to say the least. Why you may ask, because the only evidence that the US Department of Justice had was hearsay evidence and entrapment. Firstly for some 18 months DoD member BCRE8TIV real name James Cudney was a paid informant for the Department of Justice and the US Customs Agency. Cudney solicited names and addresses from other members two weeks before the raids in the US. He also actively recruited members for Drink or Die. A bit absurd that these US government agencies would pay someone to break the laws they are supposed to be enforcing.

    Further more I would suggest that you look at the sentences that were handed out to the American members of DoD.

    John Sankus – Led and managed warez group DrinkOrDie, participated in warez group Harm; traded software with retail value of between $2.5 million and $5 million. – 46 months in prison (reduced November 2002 to 18 months)
    2 years supervised release, 200 hours community service

    Christopher Tresco – System administrator for DrinkOrDie (including operating a drop site). – 33 months in prison (reduced in October 2002 to 6 months in prison and 7 months community confinement), 2 years supervised release, 100 hours community service. May not use the Internet for non-work related purposes.

    Richard Berry – Longtime member of DrinkOrDie, provided them hardware, tested cracked warez and operated bounce sites. – 33 months in prison (reduced in October 2002 to 2 years probation including 12 months home confinement with electronic monitoring), 2 years supervised release.
    But to name a few, same happened with the rest of the US members

    For lighter sentences US members pointed the finger at Hew so the DOJ can get on its soap box. A while after the bust and just before starting his sentence, Richard Berry rang Hew Griffiths. So what was the point of this phone call? Well it did turn up as evidence against Hew in the US court. Draw your own conclusion. This allegation has been substantiated by both Hew Griffiths and Richard Berry

    The evidence against Hew was extremely flimsy to say the least. This is also highlighted in the transcript of the US appeal in the Federal Court for Hews extradition, and I quote;

    Paragraph 136: “However, Mr Wiecherings affidavit describes in paragraphs 38 to 40 acts done by Mr Griffiths in reproducing and distributed copyright works without the authorisation of copyright owner. Ms Gables list of software releases cracked & distributed by DoD contains a staement of the copyrighted items which Mr Griffiths is said to have infringed as principal. It is true that the acts are attributed by Ms Gable to DoD rather than Mr Griffiths but he is stated in the indictment to have been a council member and leader of DoD during this period.

    This was their supporting documentation for Hews extradition. An affidavit stating that Hew Griffiths infringed copyrights, and then they admit the documentation only refers to actions of the group. I thought to lie to a court was called perjury. This clearly shows the lack of a case against Hew, other then their unsubstantiated hear say evidence from people wanting to get a lighter sentence for themselves. Under the Australian Extraditon Act a person should not be extradited on the grounds of predjudice. The case against Hew was extremely predjudiced against Hew.

    Austarlia and the United States are both signatories of the World Trade Organisation TRIPs Agreement. This agreement sets out that countries must enforce laws for foriegn copyrights. So why did the governments of both Australia and the United States ignore this agreement? The same can be said for Free Trade Agreement between Australia and the US. By this agreement the Austarlian government has basically imported the US Digital Millenium Copyright Act into Australian law. So with both of these agreements why wasn’t Hew Griffiths tried here in Australia? Answer, for political reasons. The entertainment cartels in the US donate millions of dollars into the coffers of US Senators and Congressmen and now they want a return for their investment.

    In April of this year Hew entered into a plea bargain for the charge of conspiracy to commit copyright infringement. The charge of copyright infringement so readily dismissed by the US Department of Justice? Could it be that they had no case against him that they could prove in a court of law?

    Richard Berry, James Cudney and Kent Kartadinata all testified via video hook up in the UK trials of the british members of DoD. Why couldn’t the same be done here with regards to Hew Griffiths.

    In correspondance with Foreign Affairs minister, Alexander Downer, I raised the issue of why Hew Griffiths was not charged under Australian law, I was advised by him that the Australian Federal Police never investigated him. In later correspondance with Mr Downer he stated that the Austarlian Federal Police separately concluded that Mr Griffith’s prosecution would be more appropiately handled by the United States. My question here is on what basis did they come to this conclusion when they didn’t investigate Hew Griffiths?

    The Australian government didn’t want to upset America by denying them of their politcal show trial. So why bother with international agreements such as TRIPs if you are only going to ignore them.

    This morning Australian time, Hew Griffiths was sentenced to 51 months imprisonment. Compare this sentence to what the Americans got and tell me that there was no predjudice against him.

    Hew Griffiths is a British citizen. He had permanant residence status here in Australia. This was cancelled by the Australian government the moment he was put on the plane to the US. Hew had lived here for the last 37 years. Now once he has done his sentence for this alleged crime he will be further incarcerated over there as an illegal immigrant awaiting deportation more then likely to the UK.

  20. Brian Howard says:

    I have read Jacobsen’s findings over and over again, and on each occassion the shock and horror of this injustice simply grows incrementally.

    Whether our laws are used selectively or whether they are simply made up to suit each occassion as we go along, the result remains the same, citizens and residents of Australia should not feel protected by the laws of this nation any longer, particularly not if there are commercial and/or political interests at stake.

    This Hew Griffiths case, the Monica Rau matter, the David Hicks affair, sieve-X, AWB, children overboard as well as the numerous others which have not enjoyed the attention of the media, is absolute proof to any person willing to look at this issue objectively.

    Welcome to the Fascist Commonwealth of Australia.

    And the worst part of it all is that an election won’t even begin to solve the problem!

    I believe we are in trouble folks, and that trouble is using the Australian flag and grass roots nationalistic fervour to slip past our awareness and entrench itself, undetected, into our national psyche.

    Brian

  21. Geoff Honnor says:

    “Geoff I guess your points are amusing, but I dont think theyre very telling”

    It’s kind of you, Nicholas, to detect humour. I’ll leave the “telling” to Brian.

  22. Yes, quite generous I thought :)

  23. Bannerman says:

    Strange, I notice no-one from the ‘Let’s support the the US legal system’ bandwagon wanting to engage KC on his/her comment.

  24. KC says:

    Yet another letter I have sent (today)to Foriegn Affairs minister Alexander Downer:

    24th June 2007

    The Hon. Alexander Downer
    Minister Foreign Affairs

    Mr. Downer,

    I am compelled to write to you again regarding the matter of Hew Griffiths, who was extradited in February this year to the United States to face the alleged charges of conspiracy to commit copyright infringement and copyright infringement. In April of this year Hew Griffiths entered into a plea deal with the United States authorities on the charge of conspiracy to commit copyright infringement. The charge of copyright infringement was dismissed. In previous correspondence to you I raised my concerns regarding these charges against Hew Griffiths. In light of the fact that the charge of copyright infringement was dismissed vindicates my concerns that I raised with you.

    On Friday, 22nd June 2007, Hew Griffiths was sentenced to 51 months imprisonment. They will take into account the time Hew Griffiths has served here in Australia. Mr. Downer this is not justice in any mans language. I have previously raised my concerns with you regarding the prejudice in the legal proceedings in the United States, against Hew Griffiths. Again the sentence handed down to Hew Griffiths and the gloating by United States authorities has proved my concerns correct.

    Mr. Downer, I will put forward to you a comparison of the outcomes of the case against Hew Griffiths and another member of the WAREZ group Drink or Die, Mr. John Sankus.
    Hew Griffiths and John Sankus were alleged to be co-leaders of the group known as Drink or Die. Hew Griffiths and John Sankus were both charged with Conspiracy to Commit Copyright Infringement. In the charge against John Sankus the value of the copyrighted works was declared at $2.5 – $5 million dollars. Yet in the case against Hew Griffiths the value was put at $50 million. Both John Sankus and Hew Griffiths were members of the same WAREZ group, allegedly holding the same rank in this group and having access to the same pirated software and movies. How then can the value of the infringed works vary so greatly? The monetary amount in the case against Hew Griffiths is some ten times greater. This Mr. Downer proves that the case against Hew Griffiths was prejudiced for political reasons.

    This is further demonstrated by the sentences handed down against these two persons. John Sankus was sentenced to 46 months imprisonment in May 2002. In November this sentence was reduced to 18 months. Hew Griffiths has been sentenced to 51 months imprisonment. Remember that Hew Griffiths has already been incarcerated for over 3 years. That is twice the prison time John Sankus served and Hew will have a further 15 months to do on top of this. The other difference between John Sankus and Hew Griffiths is that John Sankus is American and Hew Griffiths is not.

    Mr. Downer, I have previously raised the issue of why Hew Griffiths was not brought to justice under Australian law, given that Australia is a signatory to the World Trade Organizations Agreement on Trade-Related Aspects of Intellectual Property, known as the TRIPs Agreement, and the more recent Free Trade Agreement between Australia and The United States. Both of these agreements Mr. Downer put the burden on Australia to harmonise its laws, in this case copyright protection laws, between nations. That is under these agreements Australian Copyright Laws are to be the equal of other nations, such as The United States of America. So why Mr. Downer, do we have these agreements if the current Australian government, of which you are a senior member, is going to ignore them? By choosing to ignore these agreements, I put to you Mr. Downer that the current Australian government is in point of fact in breach of these agreements. Is there an exemption in these agreements for the United States government when political point scoring is involved?

    In a reply to me from you dated 10th February 2006, you stated that the Australian Federal Police did not investigate Hew Griffiths. Yet in later correspondence from you dated 23rd March 2007, you stated that the Australian Federal Police separately concluded that Mr. Griffiths prosecution would be more appropriately handled by the United States. So tell me Mr. Downer, given that the Australian Federal police did not investigate Hew Griffiths, on what basis did they come to the conclusion that it would be best for the United States to prosecute Hew Griffiths?

    Mr. Downer, the belligerent approach by the current federal government in this matter is nothing short of reprehensible. It is a shameful day when the government of this country would treat its citizens with such disdain and contempt. Justice denied is not justice. It is a disgrace for this country, that its government should act in such a manner as to willingly partake in an injustice of this kind.

    Mr. Downer, for the reasons I have listed above, it is time for this federal government to right the wrong that has been undertaken, not just for Hew Griffiths but for the population at large and return respect to the sovereignty of Australia.

    I await your reply

  25. Pingback: LawFont.com » Crikey on Griffiths

  26. KC says:

    Don’t think that Hew Griffiths is an isolated incident. I refer to the Grand Jury of Chicago against the WAREZ group RISCISO in 2005. The US government has also asked for the extradition of Perth man Sean O’Toole. Thankfully Sean had the common sense to disappear and to date has not been aprhended.

  27. John Mathews says:

    Checking our article in NM and the commentary there, I was led to the extensive discussion that has transpired in Club Troppo. So please bear with my late-ish comments on these exchanges.

    Firstly Nicholas, please drop this unnecessary tone that our piece was ‘tendentious’, and that you are ‘aghast’ at our apparently editing out the details of the Griffiths infringements (when we were in fact at pains to include them in a shotish piece) and smearing our article as another piece of ‘Howard bashing’. All too easy points to make, and none of them doing you any credit. Your original comment, that you didn’t know any of these facts, and that you should have, is more to the point.

    We were approached — that is, Linda Weiss, Elizabeth Thurbon and myself — because the campaign on behalf of Hew Griffiths considered us experts on copyright; we had described how Australia’s copyright law had been ‘harmonized’ with that of the US in our book How to Kill a Country. We claim no more acquaintance with copyright law than any other informed citizen. But what made us angry about the Hew Griffiths case is how a resident of Australia could be so totally abandoned by the government and the Australian authorities accede so easily to outrageous US demands.

    After examining the facts, it became apparent to us that the real issue here was not the niceties of copyright law, but the willingness of the Australian authorities to bow to US extradition demands when Australia has perfectly adequate copyright laws which have actually been harmonized substantially with the US criminalization procedures under the Digital Milennium Copyright Act. Are we the only ones who see it as a sad reflection on Australia that we give away our own laws and then don’t even insist on using them when faced with an extradition request by the US? You have to ask at this point: what are the limits? What would it take for the Australian government to refuse an American demand?

    OK Ken, we stand corrected on the issue of the courts or the government hearing the case for extradition. The discussion above, in the interventions made by JF and BH, and in particular the long quote from Justice Jacobson, adds materially to the facts as we presented them in a short piece designed to draw attention to a travesty of justice. Ken’s long interventions seem designed to show that it is entirely ‘normal’ for a long-standing resident of a country to be made the subject of US extradition demands and be punished in this exemplary fashion. The long list of misdemeanours spelt out in the indictment amount to one thing: Griffiths and his fellow software pirates cracked software codes and posted these to their ring. They got a kick out of doing so, and most people would applaud their actions when confronted by the extraordinary lengths to which producers and distributors of software, films and games are prepared to go in protection of their property. We look on in horror as the Disney Corporation is able to buy the votes in the US Congress to have copyright protection extended from 50 to 70 years, and then we look in amazement as the Australian law is simply changed without any Parliamentary debate under the terms of the trade agreement with the US. These are the issues that should be making Club Troppo discussants hot under the collar.

    Let us at least have the humanity to recognize what a shocking travesty of justice has been carried out in our name by the Australian courts and government in abandoning Hew Griffiths in this way. My co-authors and I tried to get our article into the Fairfax or Murdoch press, without any success. We thank New Matilda for having the courage to publish the piece, even if the discussion could do little to help Griffiths himself.

    But here I come to another strange feature of editing of our article by Nicholas. We drew attention at the end of our piece to the real significance of the Griffiths case, which is that it establishes a precedent under which any small business owner in Australia who is using software of unknown origin (which could have been passed on from one business to another without the recipients ever thinking to inquire into its origins) is now at risk of falling victim to US ‘justice’ — thanks to the compliance of the Australian authorities. Here KC is right on the money in the last posting, in drawing attention to the relentless pursuit of people by the US government. We are all reduced to a state of insecurity by this case — that is its real import.

  28. Brian Howard says:

    It is difficult not to concur with John Mathews.

    “A state of insecurity” – indeed, because it is no longer sufficient for us to make ourselves aware of and to comply with our own laws, but that we are now required to become fully rehearsed in the criminal codes of every nation with which Australia has in place an extradition agreement whether or not we have ever entertained so much as a thought of visiting those foreign states.

    It is indeed a triumph of naivite over wisdom to believe that this case was decided purely on it’s juristic merits.

    Our “independent Judiciary” has gained another ugly chink in it’s already tarnished dignity.

  29. As you say John, the facts of the case are disturbing indeed. As for the quality of the original article I’ll be sticking by my feelings of being misled when I was – and remain – sympathetic to the basic points being made. Sufficiently sympathetic to have posted the original article here.

    I’m also interested in the original claim that Griffiths did not seek to benefit materially from what he did. Can you or perhaps KC fill us in on the veracity of that original claim as, although I doubt I’d support extradition in such a case, it is pretty important to deciding on how one feels about the case.

  30. KC says:

    Firstly to John Mathews, I would like to commend you, Linda Weiss and Elizabeth Thurbon on your article (please pass on my thanks).

    As Ken Parish earlier posted regarding that the extradition was processed through Australian Courts and that it was a court decision is correct. However I woiuld firstly discuss that original decision made by Magistrate. Hew Griffiths did not manage to convince the magistrate as he has stated in in his post. Yes, the magistrate did proclaim that Hew Griffiths was not an extraditable person, and the reasons as to how he came to this decision, to be honest are bordering on ludicrous. It is quite evident that the Magistrate had very little understanding of what the proceedings before him were about. It is not my intention to besmirch the magistrate, as I would also say that the defence and prosecution also had little understanding of the proceedings in which they were involved. Otherwise it would have been made clearer to the magistrate.

    That being said, we now move to the appeal lodged in the Federal Court on behalf of the United States government. Why is an appeal lodged? It is not so much about the case or the evidence but about the desicion made previously, and how that desicion was made. In this case, given how Magistrate reached his desicion there was no way that an appeal would fail. Check the transcript of this appeal, part of their argument is that the magistrate misdirected himself, and they explain where this occurred in the previous hearing. If the you read the cover you will seethat it states that “Between: United States of America, Applicant and Hew Raymond Griffiths First Respondent, Daniel Reiss, Second Respondant.” The second respondant being the Magistrate from the initial hearing. The same applies the appeal lodged by Hew Griffiths after this appeal. My conclusion is that Hew Griffiths was doomed from that first hearing, even though it went in his favour. What constitutes a mistrial? Sure in this case you would have to think so. I wouldn’t say that justice was served.

    I would now move to the next stage of this extradition. The then Minister for Customs and Justice, Mr Chris Ellison. Mr. Ellison had the final say on this extradition. He could rubber stamp it OK or he could deny the extradion. What is called discretionary powers. Again I must go back to the indictment handed down by the Grand Jury of Eastern Virginia and how vague it is in relation to charges brought against Hew Griffiths. A simple comparison of this indictment and that of the indictment handed down by the Grand Jury of Chicago against the members of the WAREZ group RISCISO. The later is very detailed, it gives the name of the defendant, the date with the copyright was infringed and most of all it names the particular copyrighted work in question. My point here is given that both cases come under US Federal Law how can there be so much difference between the two indictments. The problem with the indictment against Hew Griffiths is that it doesn’t meet the criteria under US law. Under US law to prosecute a copy right infringement case, four criteria must be met;
    (1)That a valid copyright exists.
    (2)Infringement
    (3)Commercial advantage or personal gain
    (4)Willfulness

    Firstly, that a valid copyright exists then the copyrighted works must be named. The indictment against Hew Griffiths fails to attribute any specific copyrighted works that Hew infringed. This is further highlighted in the appeal in the Federal Court by the US government;

    Paragraph 135: “The conduct constituting the offence of copyright infringement is stated in count two of the indictment and in statements contained in the affidavits of Mr. Wiechering and Ms. Gable. Count two may be insufficient by itself because it merely aleges infringement by reproduction and distribution of ten or more copyrighted works.”

    So back to the indictment. the section OVERT ACTS, paragraph three states;

    “On March 3, 2001, DoD leader John Sankus (aka “eriFlleH”) drove from Philadelphia, Pennsylvania, to Fairfax, Virginia, for the sole purpose of delivering and connecting to the Internet three computor units which, collectively, comprised the DoD “leech” site known as Fatal Error. At the time, Fatal Error contained approximately 550 gigabytes of pirated computor software, games and movies, of which more than 100 titles had been provided (uploaded) by defandant GRIFFTHS in December 2000 and January 2001.”

    This statement from the indictment doesn’t mention “allege” as they claim in the appeal hearing, but catagorically states that Hew Griffiths did it. Why the dramatic change?

    So how does this case involve the Federal Government? I wrote two times to Foriegn Affairs minister Alexander Downer and once to Justice Minister Chris Ellison. On all occasions I raised my concerns about the extradition proceedings that had taken place against Hew Griffiths and the US government s case in general. These letters were written 12 months before Hew Griffiths was extradited. Both ministers were well aware of my concerns. Mr. Chris Ellison, in my opinion failed to investigate the matters I raised.

    The Federal government is further involved in this matter in regards to Hew Griffith’s permanent resident status. Whilst Hew Griffiths was in Silverwater jail awaiting extradition, his permanent residancy status was cancelled. This is six months before a conviction was recorded against him. Becausehe was in jail he was not able to appeal this desicion. I think this shows that the Federal Government had already decided his guilt. Remember that he was kept in remand at the request of the US government, not because of any guilt that had been proven. So much for innocent until proven guilty.

    So if people think that the NM article is just Howard bashing, then think again of what I have put forward and tell me that the current Federal Government should not take the blame for the extradition of Hew Griffiths and the denial of basic legal and human rights. Also remeber that Hews’ rights are our rights.

  31. Pingback: Club Troppo » Missing Link - 27 June 2007

  32. As a “CONSTITUTIONALIST” I view a major problem with this case is that the Commonwealth of Australia insisted its non-bbail provisions applies which constitutionbally does not as such apply at all. A state court judicial officer could have nullified any Commonwealth law purporting detention without bail.
    the quotations below indicates that civil rights are embedded in the constitution, just that politicians like you to belief it isn’t and regardless what Hew Griffith may have done he never should have been robbed of his constitutional rights, which includes not to have been deported from Australian soil, where he after all was lawfully residing in the Commonwealth of Australia.
    Considering cases such as Vivian Alvarez Solon we need not just someone to profess “NEW LEADERSHIP” but actually show to the Australian community that politicians will also observe the constitution, both the written text and what otherwise is embedded in the Constitution as principles. This, as otherwise it will go on and on that peoples constitutional rights are ignored.
    .
    We either have a Constitution or we don’t!

    .
    Re: COMMANDER CHRISTOPHER BOLTON, CAPTAIN H.M.A.S. “PENGUIN” AND THE HONOURABLE KIM CHRISTIAN BEAZLEY, THE MINISTER OF STATE FOR DEFENCE Ex Parte DOUGLAS BEANE F.C. 87/012
    QUOTE
    The Constitution of the Australian
    Commonwealth does not contain broad declarations of individual rights and
    freedoms which deny legislative power to the Parliament
    END QUOTE

    Further,
    Brown v. Lizars (1905) 2 CLR 837 at pp 851-852, 861 and 867-868 and Reg. v.
    Governor of Brixton Prison; Ex parte Soblen (1963) 2 QB 243 at pp 299-302 and
    306-307.
    QUOTE
    Lord Denning M.R. in Reg. v.
    Governor of Brixton Prison; Ex parte Soblen (1963) 2 QB 243, at p 299, stated
    the common law in terms which I would respectfully adopt:

    ” … every person coming from abroad, as soon as he
    sets foot lawfully in this country, is free; and,
    so long as he commits no offence here, he is not to
    be arrested or detained for any offence that he may
    have committed in some other country. If any
    attempt were made to arrest him in order to
    surrender him to that other country, he would at
    once be entitled to be set free. The writ of
    habeas corpus is available to him for the purpose.
    In the absence of an extradition treaty, it is no
    answer for the Crown, or any officer of the Crown,
    to say that he wishes to send him off to another
    country to meet a charge there.”
    END QUOTE

    Hansard 1-4-1891 Constitution Convention Debates
    Mr. CLARK:
    I think if hon. members will read through all the provisions which appear to interfere with state action, or which do deliberately prohibit such action [start page 547] in certain subjects, they will see that it is for the protection of certain fundamental rights and liberties which every individual citizen is entitled to claim that the federal government shall take under its protection and secure to him.
    .
    Hansard 8-2-1898 Constitution Convention Debates
    Mr. OCONNOR.-I do not think so. We are making a Constitution which is to endure, practically speaking, for all time. We do not know when some wave of popular feeling may lead a majority in the Parliament of a state to commit an injustice by passing a law that would deprive citizens of life, liberty, or property without due process of law. If no state does anything of the kind there will be no harm in this provision, but it is only right that this protection should be given to every citizen of the Commonwealth.

    Hansard 27-1-1898 Constitution Convention Debates

    Mr. BARTON.-We do not propose to hand over contracts and civil rights to the Federation, and they are intimately allied to this question.

    And

    Mr. BARTON.-If the honorable member’s exclamation means more than I have explained, then the best thing to do is to confide to the Commonwealth the right of dealing with the lives, liberty, and property of all the persons residing in the Commonwealth, independently of any law of any state. That is not intended,
    And

    Mr. BARTON.-Yes; and here we have a totally different position, because the actual right which a person has as a British subject-the right of personal liberty and protection under the laws-is secured by being a citizen of the states. It must be recollected that the ordinary rights of liberty and protection by the laws are not among the subjects confided to the Commonwealth. The administration of [start page 1766] the laws regarding property and personal liberty is still left with the states. We do not propose to interfere with them in this Constitution. We leave that amongst the reserved powers of the states, and, therefore, having done nothing to make insecure the rights of property and the rights of liberty which at present exist in the states,

  33. Ken Parish says:

    What a rare pleasure to have a vist from Mr Schorel-Hlavka. It seems to happen only every 6 months or so, rather like a doddering but vaguely loveable uncle who farts a lot and surreptitiously quaffs the best port while no-one’s looking.

    I’d like to endorse the sentiments of Lord Denning and Edmund Barton re basic freedoms, but sadly the High Court disagrees with both of them (e.g. Al Khateb v Godwin re indefinite detention of illegal aliens) and, whatever opinions either Denning or Barton may have entertained about those aspects, they’re just as irrelevant as mine and Mr Schorel-Hlavka’s. The Founding Fathers definitely intended to make the High Court the ultimate arbiter of the Constitution’s meaning and effect, and it held as long ago as 1920 that there are no “reserved powers of the states”.

  34. Nabakov says:

    I did the Pesher thang on Schorel-Hlavka and can now confidently announce that what he is really saying is that Kylie Minogue is a radial steel-belted tyre.

    Back off-Pesher and OT- the US’s single biggest export now by value is IP and so they’re quite rightly utterly paranoid about it. And any US lawyer, whether within the public or private sector, who bags a good scalp in this current economic arena has their long term career assured.

    Poor old Hew is just a chew toy here in a big dog tussle. I just hope he’s capturing and documenting what’s happening to him, cos down the track his story of what happened to him could be worth big bucks.

    Also, has no one in the US criminal justice system watched “The Shawshank Redemption”? Putting a bright, personable and highly skilled hacker like Hew into a medium security and wired up penitentiary with a serious admin staff shortage (which is all US prisons) is just asking for it.

    If I was SecDef, I’d order up for Hew a pardon and a six figure job running a tiger team at the NSA or CIA.

    Or send him deep undercover into the Russian Business Network.

    Oh fuck it! maybe that’s what this setup was all about anyway and I’ve just blown it. The hacker who came in from the cold. Sorry Hew.

    “You could be Yankee deep deep underplant! Prove you’re not! Send penis enlargement invitation to your mother! Or die!”

  35. Nabakov says:

    “…rather like a doddering but vaguely loveable uncle who farts a lot and surreptitiously quaffs the best port while no-ones looking.”

    I was aspiring to something like that until you deftly nailed S-H with that description. Back to single malts and bass clarinet tones while stepping out to enjoy some tobacco and watering the flowers. .

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  37. The article does indeed seem controversial towards focusing on a single factor, and that is to prove that the U.S means business when it comes to the violation of its laws. However, it is at the same time contradicting as to have allowed other members of Drink or Die to be tried at their respective home countries. I also believe it is the courts that make such extradition agreements, and not the government as a whole. Thus, it has nothing to do with the government’s confidence about its own legal institutions whatsoever. It just relies on the courts’ regulations as to whether it is deem legally appropriate for the removal of the convicted from his home country and be extradited.

  38. The article does indeed seem controversial towards focusing on a single factor, and that is to prove that the U.S means business when it comes to the violation of its laws. However, it is at the same time contradicting as to have allowed other members of Drink or Die to be tried at their respective home countries. I also believe it is the courts that make such extradition agreements, and not the government as a whole. Thus, it has nothing to do with the government’s confidence about its own legal institutions whatsoever.

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