Tuesday, June 26, 2007

Tuesday Column: If it happened to Hew, it could happen to you

Most of us have an opinion about the way the Australian government has treated David Hicks. Few of us have ever heard of Hew Griffiths.

Now in his forties, he has lived in Australia since the age of seven, most of the time with his father on the central coast.

Early one morning in 2003 the Australian Federal Police raided the weatherboard house and arrested him for breaking a US law.

Hew Griffiths had never even been to the United States. He didn’t own a passport...

Like most of us he might have felt entitled to believe that he was subject to Australian law.

His crime (which many of us would think of as civil rather than criminal in nature, however reprehensible) involved cracking codes and distributing computer copies of copyright-protected films, music, games and software.

Charged in his absence by a US grand jury, and languishing in Sydney’s Silverwater jail, he had an early win.

Magistrate Daniel Reiss found that the case broke new ground. No-one, anywhere in the world had ever been extradited to the US to face on-line copyright charges. He refused the request for extradition, finding that Griffiths was not “a fugitive fleeing and hiding from the extradition country” and that the case did “not involve the usual situation where another country… seeks the return of a person convicted, or charged with, an offence physically committed in that other country".

The US appealed and won. Justice Jacobson of the Federal Court found as he needed to in order to approve the extradition request that the alleged conduct would have been illegal had it taken place in the state of NSW.

He appeared to be unmoved by the irony that the conduct did take place in NSW, and so on his own reasoning could be dealt with under Australian law.

Griffiths fought the extradition all the way to the High Court, which found it could not hear the appeal, and to Australia’s then Justice Minister Chris Ellison who had the power to refuse the US request but chose not to do so.

In February this year two US officials brandishing a one-way travel document bundled him onto a United Airlines flight to Los Angeles and then to a US jail ahead of his trial in Virginia.

As far as I can tell, Australia’s politicians said not a thing. I receive every press release issued by Australia’s Shadow Ministers, hundreds each week, and I can’t find a single mention of Hew Griffiths among them.

Justice Peter Young, the NSW Chief Judge in Equity, was concerned enough to write to the Australian Law Journal describing as “bizarre” the fact that “people are being extradited to the US to face criminal charges when they have never been to the US and the alleged act occurred wholly outside the US”.

Doubly bizarre was that Griffiths had accomplices, eight of them British. Yet they were tried under British law. The US didn’t try to extradite them to the United States.

The attitude of the British government in the past suggests that it would not have succeeded. Britain got its citizens out of Guantanamo Bay to have them tried at home. Australia did not.

It is possible to stretch the parallel between Australia’s terror suspect David Hicks and Australia’s cyber criminal Hew Griffiths too far. One trained to kill people, the other helped distribute software. But in both cases, our Government surrendered them to the US legal system rather than insist they be tried by our own.

On Friday the unemployed broke former Australian resident (no-one alleges that he made money from his hobby) was sentenced to 15 months in an American jail.

The US is crowing about what it is able to achieve with Australia’s help.

Attorney Chuck Rosenberg of the state of Virginia declared in a statement that “for those inclined to steal intellectual property here, or from half-way around the world, they are on notice that we can and will reach them”.

It is an unsettling prospect. How many of us who have teenage children with access to computers know whether or not our children “steal intellectual property”? How many of us even know what that means? And how many of us would have assumed that what mattered was the Australian, rather than US law.

Rosenberg was happy to help with a definition. According to the attorney “whether committed with a gun or a keyboard -- theft is theft”.

He is wrong. Just as is the Australian recording industry which has sought jail terms for Australian students who download music.

After university students Charles Kok Hau Ng and Peter Tran were given suspended jail sentences for organising a music sharing site a few years back the recording industry claimed they had cost it $200 million. A spokesman declared “clearly if you steal this much music from the store, you go to jail”.

But copying and downloading is different to stealing, and most of us sense it. That’s why those anti-copying ads at the cinema that remind us that we “wouldn’t steal a car” don’t ring quite true.

For something to be stolen, there must be something missing. Often there is very little missing as a result of illegal downloads. In some cases the “buzz” created by the downloads actually increases legal sales.

The Australian students alleged to have stolen $200 million, and Hew Griffiths, alleged to have helped steal $60 million almost certainly didn’t.

Australians have been downloading and sharing music since the end of the 1990’s, in massive and increasing amounts. Yet the Australian Recording Industry Association reports that last year legitimate sales of music soared 27 per cent.

Hew Griffiths and his crew may have given away copies of Microsoft programs and new release movies, but I would be interested to hear how much Microsoft and the movie companies believe those giveaways have actually hurt their sales. (It is data they might have been asked to provide if Griffith had faced a civil suit rather than a criminal trial as arguably he should have).

The zero-sum approach to the theft of intellectual property adopted in the US is the wrong one. I fear that the laws based on it are ultimately unenforceable.

In Australia we have agreed to replicate it as part of our obligations under the Free Trade Agreement.

The fate of Hew Griffiths suggests that we are doing so enthusiastically.