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Monday, 25 June 2007

12 Responses to “Crikey on Griffiths”

1. Clement Clarke Says:
   June 25th, 2007 at 4:40 pm

   I am a serious software developer. I have “at it” since 1969 odd, and worked with Shell as a computer programmer for some 4 years before that. I find it rather interesting that Microsoft can steal ideas and software from companies (eg STAC) and stop others marketing Windows replacement programs (Microsoft paid IBM $2 billion a few years ago over the OS/2 debarkle). And don’t forget that Microsoft started off by “borrowing” an Operating System called CP/M written by Gary Kildall, who died some ten years ago after being chased through court after court by Bill Gates/Microsoft to stop him getting any more of his brilliant ideas out to the consumers.

   I find that the Americans will do ANYTHING to further their agenda at the expense of others. And the British probably are not too far behind.

   Unfortunately, copyright and patent laws are now being used to corner intellectual property and knowledge to the detriment of humanity. When companies patent SEEDS and stop us growing our own food, they have gone way too far.

   Of course, the age old problem. How do creative people get paid? I’m working on that!

   Recently, I gave a talk here in Perth to the Theosophical Society. It was about Beliefs, and I used the American Belief system as an example.

   You can read it here: “Business Beliefs Destroying the World” : http://members.ozemail.com.au/~oscarptyltd/AmericanBeliefsWeb.html

   Clement Clarke, June 25, 2007
   Main site: http://members.ozemail.com.au/~oscarptyltd/

2. KC Says:
   June 25th, 2007 at 6:42 pm

   Under US law there are 4 requirements to prosecute for copyright infringement;

   (1) That a valid copyright exisits
   (2)Infringement
   (3)Willfulness
   (4)Commerical Advantage or Personal Gain

   So lets look at the first two items and apply them to the Grand Jury Indictment against Hew Griffiths. The indictment does not stipulate any copyrighted works infringed by Hew Griffiths. Without naming these works they cannot prove that a copyright exists let alone infringed. The closest it gets is in the overt acts section of the indictment where they make the claim that the DoD site “Fatal Error” contained approximately 550 gig of pirated software, games and movies, of which more then one hundred titles had been provided (uploaded)by defendant Griffiths in December 2000 to January 2001.
   So in english they claim that Hew Griffiths uploaded in excess of 100 titles in a two month period. And still no names of what was infringed. As the evidence for this grand jury came from the hear say of american members of DoD in exchange for light sentences, this makes it somewhat flawed. It seems that none of these people ever mentioned to the US Department of Justice that Hew Griffiths only had a dial up internet connection. Hew Griffiths must be an IT genius if he was able to upload all these pirated things in two months. It makes me wonder why I have broadband when all I obviopusly need is a dial up.

   etting back to the point in question, copyright infringement, the US DOJ failed to prove copyright infringement yet they still used this misinformation in an Australian court for Hews extradition. Surprise surprise in America when they had Hew they dropped the charge of copyright infringement. I can only conclude that they didn’t mind lying in an Australian court but wouldn’t do it in their own court.

   Whilst they bandy around now that Hew Griffiths was the leader of Drink or Die, what of the prosecution in 2002 that John Sankus was the leader? People seem to ready to believe the reguritation of the DOJ lies they read in the paper. As yet I have not seen one article that has been printed that tells the truth. The american authorities have to paint the blackest picture of Hew to justify the money they have spent to make it worth while.

3. kim Says:
   June 26th, 2007 at 8:45 am

   Hi KC,

   It’s hard to know the full truth of all of this. But a couple of responses to your arguments:

   First, it is not true that commercial gain is an element of criminal copyright infringement – either here or in the US. The No Electronic Theft Act of 1997 amended the definition of “commercial advantage or private financial gain” to include the exchange of copies of copyrighted works even if no money changes hands; it also created a threshold for criminal liability even where the infringer neither obtained nor expected to obtain anything of value for the infringement. Similarly, Australian law for some time now (and prior to AUSFTA) has allowed for criminal liability for copyright infringement where a person distributes articles (including electronic copies) to an extent that prejudicially affects a copyright owner.

   Second, in relation to Griffiths’ role: if you read the Australian Full Federal Court judgment, you will see that in fact, Griffiths is described as ‘a leading member – not the leading member. You will also see that it is not necessarily the case that more than a dial-up connection in Australia would be required to carry out all the kinds of activities discussed. Most of Griffiths’ conduct as alleged involves, not direct uploading by him, but taking a coordinating role where the main servers were based in the US. To quote paragraphs 16-18:

   Paragraph 3 of Count One provides particulars of how the conspiracy was carried out and of Mr Griffiths’s 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 DOD’s ‘drop site’ prior to the manufacturer’s 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. Other DOD members known as ‘crackers’ would remove the software from the drop site and use their skills to ‘crack’ the software’s embedded copyright protection. The software would then be quality tested by ‘testers’ then broken apart by ‘packers’ before being prepared by ‘couriers’ for release and distribution to DOD affiliated computer storage sites throughout the world.

   Paragraph 4 of Count One 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. Additionally, monthly summary reports were maintained by DOD setting out details of the releases of the pirated materials. The emails and 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 $US1,000,000.

   Paragraph 5 of Count One states ‘[i]t was further part of the conspiracy’ that DOD was a highly structured organisation consisting of approximately 60 persons, the leaders of which had ultimate authority over all aspects of DOD’s 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.

   It seems to me that you could do those things without having a fast connection – it is not said that Griffiths was a supplier (uploading material) – he was a coordinator according to these facts.

   Now, it’s true that later in the indictment, there is discussion about whether there was sufficient evidence to show direct infringement, and even the Full Federal Court acknowledges there is some lack of clarity here: the conduct (uploading etc) might have been done by Griffiths directly, or by other people with his aid (in a situation where US law allows someone who aids or abets to be liable as a principal). Even if you were to say, however, that Griffiths did not directly infringe himself, it is sufficient – for him to be indicted, extradited, tried, and even convicted – if he was part of a conspiracy to commit large-scale criminal copyright infringement. Which would not require him to be proved to have uploaded himself. Much of the indictment dealt with that material.

   And don’t get me wrong: I don’t agree with extradition here. I don’t think it’s proportionate and I certainly don’t think it’s good for Australian law or certainty for people doing acts in Australia. And it may be right that the indictment doesn’t get at the full truth: and with no full trial challenging the evidence and arguments, it’s hard to know the truth. But it’s not as implausible as you seem to think, on what I have read (which is just the publicly available materials).

4. Andrew Patterson Says:
   June 26th, 2007 at 11:13 am

   Firstly, ignoring the copyright angle, I’m not sure I am surprised just
   because he hadn’t set foot in the US. If he organised a mob hit in Chicago,
   or was running a drug ring in New York from his NSW bedrom – he could be extradited to the US for those crimes surely? I don’t know enough about US-Australia extradition law – wouldn’t entering into a conspiracy such as those make him subject to US jurisdiction?

   In this specific case, the crime happened “on the internet”. To paraphrase
   part of the Gutnick reasoning, the fact that the act occurs everywhere (i.e the internet) doesn’t mean it occurs nowhere. So I think the danger with doing
   things on the internet is that any country that can show some sort of
   interest could look to seek jurisdiction. Here, the servers were in the US,
   the interests that were harmed were mainly US, and the co conspirators were
   mainly US based. Moreover, they had lots of willpower to go ahead and Australia didn’t..

   Is it worrying that copyright violation is a crime subject to
   extradition – well that’s a separate discussion.
   We as a society (??) seem to have decided massive flagrant violations need to be treated criminally and this guy certainly is a poster child for big
   violations. Presumably the criminalness (I just invented a word) met the bar in terms of seriousness for our US extradition treaty?

5. Andrew Patterson Says:
   June 26th, 2007 at 11:15 am

   Woops. Sorry about the formatting – what I wouldn’t give for a preview mechanism.

6. kim Says:
   June 26th, 2007 at 11:47 am

   hi Andrew,

   I think we’re in agreement on the basics. As I said in the Crikey piece, this guy (at least on the published facts) is the least sympathetic character you can imagine; if ever there was a case for extradition for IP infringement, this would be the one. This is reflected in the Federal Court judgments, which clearly demonstrate that the availability of extradition here is pretty straightforward in legal terms. There is, indeed, a long established principle that conspiracies can be prosecuted in any country where they occur (I noted this in a comment on the catallaxy discussion some time ago: (see here).

   That said and acknowledged, as I’ve always tried to do, I still think there is cause for concern at the extradition. In its essence, copyright is an economic crime, and there are grounds for arguing that such activities are best regulated by domestic law, so that people in the economic sphere do not end up having to comply with US laws everywhere on the off-chance they will decide they want to prosecute. The US is well-known for exercising scary long-arm jurisdiction over economic activities: see the article in Reason Online on this. It is not right that just because something is ‘on the internet’, the US has the right to exercise jurisdiction, although that sometimes appears to be the US attitude. In relation to copyright, Australia has strong laws, they could be used, there is no reason why they shouldn’t be. I’m not aware of any argument put that Griffiths’ activities wouldn’t have been caught by the Australian laws at the time that (at least some of them) occurred. The conspiracy angle muckies the waters here – it may well be sensible to prosecute conspiracies all in one country – but isn’t it a little interesting that the UK prosecuted at home? I think we ought to have done the same.

   Second, there’s a question of proportionality. Extradition increases the punishment to the individual (they end up incarcerated in a foreign country; Griffiths’ family is here).

   Third, I think it’s not a good look for Australian copyright law. The underlying message – as it has been since AUSFTA – is that the US governs our copyright law. That tends to make at least some members of the population think it is less legitimate, and as a result, does not need to be complied with.

   But I agree, it’s not an easy case.

7. KC Says:
   June 27th, 2007 at 7:07 pm

   Firstly Kim, I would challenge your argument that financial gain is not part of copyright infringement. The indictment handed down against Hew charged him with Criminal Copyright Infringement (17 USC 506(a)(1). So lets look at this chapter of “American Law” and I quote;

   506 Criminal Offences
   (a) Criminal Infringement – Any person who infringes a copyright willfully either-
   (1) for the purpose of commercial gain advantage or private financial gain.

   This Kim is american law. Yes the NET Act amendment changed the definition to cover bartering and swapping. This was changed because warez groups do not “sell” their pirated works. This amendment was aimed speciffically at the warez scene as they could not be charged under the statute as it was.

   Secondly as I stated in my earlier post the INDICTMENT states that Hew Griffiths “UPLOADED” more then 100 titles in December 2000 and January 2001. Yes as you say in the Federal Court they tell a different story, Why?

   Yes I know that Hew was only Co-Leader, so why do the US Department of Justice in their press release of 22nd June 2007, after Hew was sentenced start with “WASHINGTON – The “leader” of one of the oldest and most infamous……

   Something else to consider is the case of John Sankus, the other co-leader of Drink or Die. Sankus was convicted in May 2002 and sentenced to 46 months in prison. In Noveber 2002 this was reduced to 18 months. The retail value claimed in this case was $2.5 – $5 million. So lets look at the sentence handed down to Hew Griffiths 51 months and the retail value was $50 million. So why the difference as both persons were responsible for the same pirated works. How could the value increase ten fold? How can Hew already have served double the time of Sankus and with more to come making his sentence almost three times the length? They both faced the same charge of conspiracy to commit copyright infringement. So why the dramatic difference?

   The charge of copyright infringement was dismissed when they got Hew to the States. After using this charge to have him extradited why all of a sudden drop it?

   Kim you may want to think about the Australian legal system. The appeal lodged in the Federal Court is an appeal of the earlier decision in the Magistrates court. That is the decision and how that decision was made. You may notice on the front of the transcript of the Federal Court appeal names Daniel Reiss as second respondent. He was the Magistrate who made the initial ruling.

   Your further comments on the character of Hew Griffiths, “the least sympathetic character”, do nothing but display your ignorance.

8. KC Says:
   June 27th, 2007 at 11:48 pm

   I Agree !!!

9. kim Says:
   June 28th, 2007 at 8:39 am

   Thanks KC. A couple of quick responses:

   1. I am of course aware that criminal infringement under 17 USC 506 requires ‘commercial advantage or private financial gain’. But as I noted, the NET act broadened this so actual financial gain is not required to be proved if copies are being exchanged. This has been the law in the US since 1997. This captures the activities Griffiths pleaded guilty to conspiring to commit;
   2. The indictment alleged two broad activities: conspiracy to commit copyright infringement (not requiring uploading) and direct copyright infringement (requiring uploading or similar). The law of extradition does not require that the offences be proved in the Australian court: that happens in the US court. Whether the acts actually occurred in the way described is tested in the US court. Thus the issues of whether Griffiths did the things alleged, or could have done the things alleged, is beside the point from a legal perspective.
   3. I have to admit I don’t find the dropping of the direct infringement charge all that sinister. The conspiracy charge would have been sufficient for extradition even without a direct infringement charge.
   4. Without knowing more about all the individual cases and facts, I couldn’t comment on the comparison with the other leader. I must admit I’m not particularly concerned about whether Griffiths was ‘a’ leader or ‘the’ leader – or what a press release says. There is no doubt they have extradited, and charged, Griffiths to set an example and to scare people. Yes, deterrence of others is an aim. As to the proportionality of the sentence, I’d need to do a lot more work to comment on it – to see what kinds of sentences are generally handed down in like offences;
   5. My comments on Griffiths being ‘unsympathetic’ are, as I have consistently noted, based on the facts as published. I have never claimed to have investigated the underlying facts, I may well be ignorant of those. But I have no hesitation in saying that if Griffiths did, as alleged, involve himself in a coordinating role in a group that deliberately set out to infringe software copyright on a large scale, and exchange copyright materials, then I have considerably less sympathy. I’m not a fan of piracy or warez traders, and I have no real problem with the application of criminal law against those activities.

   Thanks for your comments though – it has helped me clarify my own thoughts on the matter.

10. KC Says:
    June 28th, 2007 at 10:09 pm

    Well done Kim, but I have some responses to the points you have raised. I shall respond as you have numbered;

    (1) The NET Act only changed the definition of “Financial Gain”. The definition of financial according to most dictionaries being: “Of or pertaining to finance; monetary. So by this definition warez traders could not be prosecuted under 506 as they did not “sell” their pirated copies, but traded them. The NET Act ammendment as you say changed the definition to include receipt, or expectation of receipt, of anything of value, including the receipt of other copyrighted works. The key word here is include. So the sale of pirated works for money still remains. As you have said it has broadened the definition. It has not removed any requirement of the burden of proof for a prosecution. It still must be proven that a copyrighted work has been infringed. The four elements required for a prosecution, I have stated in my earlier post,still apply and must be met. It does not capture the activities Griffiths plead guilty to as you have stated. The charge of conspiracy is met with the fact that Hew Griffiths was a member of the warez group Drink or Die, and by actions of other members of this group. That is, as a member of this group he would be guilty of infringement by the actions of other members if they were were convicted of copyright infringement. The trouble here is that the other members were convicted of conspiracy to commit copyright infringement and not copyright infringement.

    (2) You are correct here Kim that the Extradition Act does not require the charges to be proven and as you say that is for the US court. However the Extradition Act does require supporting documentation. I believe you have a copy of the transcript of the Federal Court hearing of this case, so I would ask you to look at what was put forward – paragraph 136 and I quote: “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 statement 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.” Notice anything unusual in this statment? Here’s a hint – “Mr Wiecherings affidavit describes in paragraphs 38 to 40 acts done by Mr Griffiths” and “Ms Gable’s list of software releases “cracked & distributed” by DoD contains a statement 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”. So they put forward a list of works Hew Griffiths infringed and then state that the list is attributed to Drink or Die as a group and NOT Hew Griffiths. So what does this document support? Certainly not copyright infringement by Hew Griffiths. I would say it supports the lies they are willing to tell to get their own way.

    (3) You may be right here as well Kim, but the conspiracy charge needs to backed up with a copyright conviction of another member to prove conspiracy. Please tell where this is in the transcript of the Federal Court hearing? All I can see is another reference to Mr Wiecherings dubious affidavit in paragraphs 140, 141 and 142. I find paragraph 142 very interesting and I will quote it hear; “The requirement that there be reproduced or distributed during a 180 day period, at least 10 copies of the works, with a retail value of more than $2,500.00 is met by statements to the effect in paragraphs 38 and 39 of Mr. Wiecherings affidavit.”

    But didn’t they say in paragraph 136 of this transcript that paragraphs 38 – 40 of Mr. Wiecherings affidavit that although they attributed these works to Hew Griffiths they were in fact attributed to DoD as a group! So what was attributed to Hew Griffiths? What were the ten copies of works? How does this statement even comply with American law which requires the 10 copies?

    (4) Kim you pleased to know that I do agree with entirely on this one. And there is no “BUT”. I would say that if you would like have the mods forward your e-mail address to me and I would be happy to forward you a list of publicised convictions under the net act up to Feb 2004.

    (5)I would like to know what “based on the facts as published” you refer to. What facts and published where?

    I would state for the record that it is not my intention to either condone or condemn Hew Griffiths for his alleged actions but to inquire into what is known in legal terms as “Due Process” as I do not believe it has occured in this instance. I do not believe that Hew Griffiths should have been extradited to the US, but should have been tried under Australian law. Given the World Trade Organisation agreement on Trade Related Intellectual Property, known as the TRIPs Agreement,of which Australia is a signatory, Australian copyright law is equal to that of any other country, including the US of A.

11. kim Says:
    July 5th, 2007 at 5:06 pm

    Ah, KC, we could, it seems, argue forever. And really, I do have a day job. I’ve tried to respond to your queries the best I can.

    It seems to me we agree on fundamentals (Griffiths should have been charged and tried here in Australia). I disagree with your claim that he did not receive due process. Griffiths’ challenge to extradition was considered by 4 judges of the Federal Court of Australia and 3 judges (in the form of a special leave application) of the High Court of Australia. All four federal court judges held that the material was sufficient for extradition. 3 judges of the High Court held that his appeal had insufficient prospects of success to go ahead. You may disagree whether he was guilty, but you cannot argue he didn’t get a hearing here in Australia. He did. Before multiple senior Australian judges of great integrity.

    The ‘facts as published’ to which I refer are those reflected in the various judgments of the High Court, and material in the media. You may well argue that that all comes from one side; so be it, but nowhere have I seen anyone claim that Griffiths is an innocent caught up innocently or naively.

12. KC Says:
    July 6th, 2007 at 8:10 pm

    Yes Kim, we could argue forever and a day, and I also have a day job. Is it not true that a judge or in this case judges can only rule on what is put before them? If certain relevant facts and information are not put before the judges, how can they rule on them? I am not proclaiming the innocence or guilt of Hew, nor have I tried in my previous posts. I point to the fact that this particular case has a high political standing in the US, and that relevant facts were not disclosed before the Australian courts. This I feel perverted the due process. I have an intimate knowledge of the facts of this case, in particular what transpired in the US that led to the request for extradition.

    Furthermore I have concerns for the willingness of the Australian government to go along with this. Hew’s permanent resident status was revoked by the government six months before a conviction was recorded against him. It was revoked whilst he was incarcerated in Silverwater jail (at the request of the US government) and denied the oppurtunity to appeal this decision. This I fell indicates that in the eyes of the Australian government they had already decided his guilt.

    Again, I would point out that it is not my intention to proclaim guilt or innocence, ands my posts should not be interpreted that way.

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