. The term is used colloquially for any kind of Linkback. The TrackBack specification was created by Six Apart, who first implemented it…

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. .

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!”

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”.

.
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,

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.

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.

“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.

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.

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 man’s 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. Griffith’s 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 it’s 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

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

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

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 Gable’s 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.

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.

Look up ‘zero marginal cost’.

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.