Another Australian Abandoned


While the saga of David Hicks is drawing to a close, with his return to Australia from Guantánamo Bay, another US-Australia saga is in full flight. 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. Indeed, he has not travelled outside Australia since he arrived here from Britain as a seven year old.

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. These three years are unlikely to be taken into account by the American court as it hands down his final sentence.

This case is even worse if possible than that of David Hicks. 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 America’s corporate radar, Drink or Die was targeted for exemplary punishment by the US Department of Justice. And exemplary punishment is what is being meted out to Griffiths with the active participation and assistance of the Australian Government.

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. But Griffiths could never have anticipated the exceptional punishment he would face. While he wasn’t 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 wasn’t 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. These new laws came into effect in Australia on 1 January 2005.

What were the AUSFTA provisions on copyright about, if the Australian Government still agrees that an Australian resident can be shipped to the US to stand trial there instead of standing trial in his own country under his own laws (even if they were ‘harmonised’ with those of the US)?

The answer is that this case has nothing to do with the adequacy of Australian copyright laws, and everything to do with the Australian Government placing the corporate interests of its American friends over and above the legal and human rights of Australians. 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 government’s 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 didn’t even bother asking other countries for extradition proceedings, as it knew the response would be a resounding ‘no’.

But as the Howard Government has vividly demonstrated time after time, Australia can be counted on to take a stand for American interests, even where the interests of its own people are overridden in the process. So, the Australian authorities through then Justice Minister Chris Ellison readily supported the US request for extradition.

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.

These punishments are so out of proportion to the ‘crime’ that they beggar belief. The question that must be asked is whether there is any limit to the Australian Government’s servile pandering to US interests.

Australian businesses should be trembling in their boots over the Hew Griffiths case. Any Australian firm that uses software packages of unknown origin becomes a target for US prosecution on this matter. Any small businessperson could find themselves charged with copyright infringement. The new criminal provisions are so wide that virtually anyone could be found infringing, knowingly or not.

And instead of expecting to be dealt with under Australian law, they could find themselves being extradited to stand trial in a US court with a US jury under a US law that paints copyright infringement as a crime worse than rape and sentences offenders to 10 years imprisonment as punishment.

The Griffiths case sets a clear precedent for all of this.

This shameful case has tarnished the honour of all Australians, whilst it has materially reduced our security, collectively and individually.

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