Knuckling Under, Down Under:

According to an article in Australia's 'The Age,' Hew Griffiths, a 44-year-old Australian, has been extradited to the U.S. to face criminal copyright charges. Griffiths was the leader of a group named "Drink Or Die," which (again, according to the article) "cracked copy-protected software and media products and distributed them free of cost."

It is, if I am not mistaken, the first time that a foreign national has been extradited to the United States to face copyright charges, and it is, according to the article, the first time that Australia has permitted extradition of anyone facing such charges.

What's interesting about it is this: it is black-letter law that the U.S. Copyright Act does not have "extra-territorial effect." It grants certain exclusive rights (to reproduce, to distribute, etc.) to the copyright-holder, but those rights -- at least as I (and all of the cases that I am aware of) have always understood the matter -- stop at the US border. US copyright law does not, in other words, prohibit anyone from, say, taking a copy of Eminem's last CD to Brazil and reproducing it and/or redistributing it and/or performing it in Brazil, because US copyright law does not grant Eminem (or whomever the copyright holder might be) the exclusive right to reproduce or redistribute the work in Brazil (or in China, or Australia, etc.). Brazilian copyright law, of course, may do so (and almost surely does do so, given that Brazil is a member of the Berne Copyright Convention and a signatory to the GATT, both of which require it to grant Eminem those rights under its local law).

The ordinary course of action, then, would be to request that Australian authorities take action against Mr. Griffiths for his violation of Australian copyright law in the circumstance described. But that's not what happened -- in fact, apparently Griffiths agreed to plead guilty to violating Australian law, but the prosecutors refused that request and went ahead and processed the extradition request.

So I'm at a bit of a loss to know what happens to Mr. Griffiths when he comes before the court in Virginia (where he's now being held). What's going to be the charge? If his actions took place exclusively in Australia (as they apparently did), where's the violation of US law?

5.10.2007 12:29pm
Martin Ammorgan (mail):
Ask General Noriega. That guy was a non U.S. citizen and the head of a sovereign state extradited to the U.S. and charged with violating U.S. drug laws. I never really got that one either.
5.10.2007 12:31pm
null (mail):
Given the embarassing failures they have had in civil litigation, I dont see any reason to assume that this is anything other than ordinary miscalculation on their part. Judigng from their past work, I really doubt they intend to prevail on the merits.

Maybe they are hoping that as a foreign national he wont be able to find a decent attorney and that by holding him in a cell they can pressure him into a settlement.
5.10.2007 12:33pm
Oren (mail):
I thought they got Noriega on conspiracy to import drugs into the US. The idea being that when you transfer (or arrange/conspire to transfer) contraband onto US soil you are in violation.

What I can't understand is why the Aussies didn't accept his guilty plea and throw him in Aussie jail. It's a slam dunk!
5.10.2007 12:34pm
James Dillon (mail):
Perhaps a creative RICO charge? Or maybe this is "terrorism."
5.10.2007 12:42pm
jimbino (mail):
Truth and justice have nothing to do with it. The Aussies are just afraid George Bush will invade Australia.
5.10.2007 12:44pm
PatHMV (mail) (www):
I would assume that he put the copies on the internet, where they could be accessed anywhere in the world, including the U.S. Having thus distributed the illegal copies into the United States, he'd be subject to our laws.

I thought that was a terrible precedent when France and Germany used it to shut down Yahoo for selling Nazi paraphernalia, and for the same principle, I don't think U.S. law should be stretched in this manner. However, the U.S. has been steadily asserting such jurisdiction in on-line gambling matters, and probably in other areas as well.
5.10.2007 12:46pm
PatHMV (mail) (www):
Internet distribution was involved. Apparently the group he led was a major distributor of pirated content across the internet. Griffith, the guy extradited from Australia, has pleaded guilty in the American courts. The US DoJ issued a press release [pdf] about the plea. I'm looking for a copy of the indictment now to see what jurisdictional allegations were made.
5.10.2007 12:53pm
Oren (mail):

The Aussies are just afraid George Bush will invade Australia.

Anything to prevent vegemite from making a comeback!
5.10.2007 12:54pm
Jon Rowe (mail) (www):
Sounds like a federal court ought to dismiss the case based on what Professor Post has written.
5.10.2007 12:59pm
PatHMV (mail) (www):
Also, according to this story, the indictment alleged that Griffith controlled access to a computer which was physically located in America, at M.I.T., actually.

Looks like he was the leader of the bunch which controlled all the "warez" computer sites which were very popular places to get illegal copies of software back in the late 90s.
5.10.2007 1:00pm
PatHMV (mail) (www):
Jon Rowe... that's going to be rather difficult, as Mr. Griffiths has already pleaded guilty to 2 criminal counts, as I pointed out in my earlier post.

I'm certain that Professor Post phrased his comments as questions because he is well aware of the danger of coming to legal conclusions based on the almost-always incomplete details provided by a newspaper article.
5.10.2007 1:16pm
cirby (mail):
There's a dozen or more international treaties covering copyright and what countries can do to enforce it, from the Berne Convention on down.

There's probably some obscure treaty that covers extradition for copyright violators.
5.10.2007 1:17pm
This is a war the recording industry is never going to win.
5.10.2007 1:30pm
I think the flaw in Prof. Post's reasoning is that you don't have to physically be in a country to commit a crime in it. A person can certainly commit an act while physically in jurisdiction A that results in a crime in jurisdiction B an be extradited for it. Here, if Griffiths distributed (or conspired to) the media to people in the US, he committed acts resulting in a crime in the US and punishable under US criminal law.

It's a fundamental part of extradition law and commonly practiced within the US (extradited between states for acts committed in one state that result in a crime in another state). Whether or not extraditions for this sort of non-fugitive extradition are permissible between Australia and the US depend on the terms of the extradition treaty (probably signed long before GWB became president) currently in force.

It seems to me that if Griffiths wanted to avoid criminal liability in the US, he should have restricted access to the material better (like not putting it on the internet). Using his controlled access to MIT computers, if true, makes the case even easier.
5.10.2007 1:31pm
Sigivald (mail):
33year: The recording industry doesn't make software; this case isn't really about music piracy.

Martin: Is "sovereign state" a mere mantra? If not, could you explain what principle of US law offers a special status for leaders of same?

(Plus, at the time, Panama had declared war on the United States. Enemy leaders captured during wartime are hardly "sovereign" anymore, are they?)

Racketeering and money-laundering charges, at least, seem quite plausible to apply to someone who'd never entered the US, if he was in charge of such operations when one end of them was in the United States. Even if he's running the country; that's no magical source of immunity.
5.10.2007 1:43pm
Martin Ammorgan (mail):
Sigivald-whatever. Don't paper over pure power projection with legal theory. The reason the Iranians can't extradite Bush for trial in Teheran for violations of Sharia law isn't due to their cramped reading of the extraterritorial jurisdiction jurisprudence.
5.10.2007 1:52pm
Martin Ammorgan (mail):
P.S. I believe that under the Military Commissions Act of 2006 Noriega would not be entitled to trial in a federal court; so now we don't even need the twisted legal reasoning prevalent throughout Noriega's trial. Progress.
5.10.2007 2:00pm
BruceM (mail) (www):
Copyright holders just pay asses like Orin Hatch millions of dollars to pass and have enforced copyright laws that protect their "interests" no matter where. If it's a U.S. company's copyright being infringed or circumvented, the US will exercise jurisdiction.
5.10.2007 2:42pm

P.S. I believe that under the Military Commissions Act of 2006 Noriega would not be entitled to trial in a federal court; so now we don't even need the twisted legal reasoning prevalent throughout Noriega's trial. Progress.

Could you point to the provision in the Military Commissions Act to which you are referring?
5.10.2007 3:33pm
Houston Lawyer:
Just try selling securities across state borders without complying with the laws of the targeted jurisdiction and see what happens. The fact that a majority of your sales were targeted to other jurisdictions where they were legal won't help you.
5.10.2007 4:16pm
I suspect that PatHMV's remarks — that one of the computer servers used for the unlawful copying — is most likely to be on target. The Virginia jurisdiction suggests he also somehow used or impacted systems of some Virginia-heavy internet companies like AOL or Verizon (current heir to the once mighty UUNET).
5.10.2007 4:38pm
In the following post:
I linked to the Australian decisions dealing with Griffiths' liability to be extradited to the US.
5.10.2007 5:18pm
Bill Sommerfeld (www):
If this allegation is true, extradition seems entirely appropriate:

"The US alleged Griffiths was one of the few who controlled access to the so-called drop site, located on a computer network at the Massachusetts Institute of Technology."
(from this article referenced earlier in this thread)

If the allegation is true, he didn't merely make material available to all comers from Australia; instead he remotely controlled a distribution point subject to US jurisdiction.
5.10.2007 5:22pm
arbitraryaardvark (mail) (www):
I don't know much about how this meta-jurisdictional- crimes stuff works. Let's say a well heeled Piracy advocate, let's call him John Fillmore, lobbies a small pacific island nation, maybe Tonga or Tuvalu or one of those, to make it a crime to interfere with the free distribution of information over the internet. Then they can post bounties for the RIAA and Software Protection Racket folks. They wouldn't be able to get extradition from the US, but in theory could use bounty hunters.
I understand the brute force defense to this practice, which nmakes it impractical, but what's the legal defense?
5.10.2007 8:37pm
midlantan (mail):
David - You're mistaken about the "first extradition for copyright" bit. There was a Ukrainian national (named Vysochanskyy, which I think I'm spelling right) extradited from Thailand to the US on copyright and counterfeiting charges a couple years ago. Of course, for another country to extradite a foreigner (from a third country) to the US is much less a big deal than extraditing one of their own nationals. So you're right that this case is unprecedented in that respect.

As for the territoriality of US copyright law, this case doesn't break any new ground. Griffiths was charged with (and pled guilty to) taking part in a conspiracy in which many overt acts were committed in the US, and charged on substantive counts of copyright infringement (that is, actually engaging in copyright infringement) in the US. There's plenty of precedent in US copyright law for getting at people who, even though they may be located outside the US, nevertheless are causing infringing copies to be made in the US or distributed into the US. (Other countries do this in copyright too - it's not a theory unique to the US.)
5.11.2007 1:34am
Urijah (mail):

What's going to be the charge? If his actions took place exclusively in Australia (as they apparently did), where's the violation of US law?

The same way we make smuggling a crime based on laws of other countries, no?
5.11.2007 4:01am
Random Commenter:
"Sigivald-whatever. Don't paper over pure power projection with legal theory."

Martin-whatever. Don't paper over a chance to rant with an actual argument.
5.11.2007 4:54am