Hew Griffiths sentenced in US court

Australian software pirate Hew Griffiths will spend over a year in a US prison after he pleaded guilty on Friday on a charge of conspiring to commit a criminal copyright infringement. Judge Claude Hilton of the US District Court in Alexandria, Virginia, sentenced Griffiths to 51 months jail. However the judge reduced the sentence to 15 months after he took into account three years Griffiths spent at Silverwater detention centre in NSW fighting extradition.

Griffiths is a 44 Briton who came to Australia with his family when he was seven. He has a British passport and never applied for Australian citizenship. Griffiths was controversially extradited to the US in February. He is the first person to be extradited from Australia to the US to face intellectual property charges. Griffiths had never set foot in the US before this time. He faced a maximum sentence of up to 10 years in prison and a US$500,000 fine for the charges. His Australian pro bono lawyer, Nicolas Patrick of DLA Phillips Fox, said he would investigate prisoner-exchange options that might allow his client to serve his sentence in Australia. Patrick also claimed the sentence highlighted the "injustice of this process" as Griffiths would have served a much shorter sentence had he been tried in Australia.

Griffiths admits he was the brains behind several counterfeit software rings called DrinkOrDie, Razor1911 and RiSC. DrinkOrDie is a network which copied software, computer games, music and videos worth $50 million. As far back as 2001, the US Customs Service was calling the group “the al-Qaeda of Internet software theft” and "the oldest and most well known" of Internet piracy organisations. Founded in Russia in 1993, it expanded internationally throughout the 1990s until it was broken up by US Immigration and Customs Enforcement in December 2001, with more than 70 raids conducted in the US, the UK, Finland, Norway, Sweden and Australia.

DrinkOrDie is a software cracking site known in its own jargon as “warez sitez”. “Warez” (pronounced either like “wares” or like the city of “Juarez”) is software that has been stripped of its copy-protection and made available on the Internet for downloading. They distributed software from computer giants like Microsoft, Adobe Systems and Symantec, as well as smaller software vendors. The group used encryption and other security measures to hide their activities from police. Bob Kruger, of the anti-piracy Business Software Alliance trade organisation said DrinkOrDie was at the forefront of piracy. "They are a notorious elite Internet pirate organization," he said. "I doubt there's much (software) out there that people want that (DrinkOrDie) can't provide."

According to Alice Fisher, a US Department of Justice assistant attorney general, Griffiths became one of the most notorious leaders of the underground Internet piracy community by orchestrating the theft of hundreds of thousands of dollars in copyrighted material. Griffiths, who used the alias “BanDiDo”, became involved with DrinkOrDie in the 1990s and he himself earned nothing from the piracy.

After 11 members of the group were arrested and charged in the US, they started to chase down Griffiths. They alleged he was one of the few who controlled access to the drop site at the Massachusetts Institute of Technology. They had Australian police arrest Griffith in August 2003 on copyright charges. He was held in custody for two months until bail was granted. He came to trial in March 2004 however Australian magistrate Daniel Riess threw out the charges saying there was no extraditable offence. The US won an appeal against the decision in July 2004. Justice Peter Jacobson ruled that magistrate Riess had "misdirected" himself, possibly because he held the view that the alleged crimes had been committed in Australia when case law and the indictment showed it was committed in the US.

Griffiths' appeal to the Full Federal Court was turned down in March 2005 and his special leave application to the High Court was refused that September. Griffiths' lawyers at the NSW Legal Aid Commission then wrote Justice Minister Chris Ellison asking him to exercise his power to refuse the US request. After eight months the Attorney-General's Department drafted a submission to the minister refusing the request. Ellison finally issued a warrant for Griffiths' extradition to the US and he was flown out in May this year.

Critics of the Griffiths case have called the Australian government action craven in the face of American pressure. They have pointed out he could have been charged in Australia and that the UK did not hand over any of their DrinkOrDie suspects. Many have likened Griffiths' treatment with that of convicted Guantanamo detainee David Hicks. Others have warned that criminal prosecutions for intellectual property (IP) violations will increase as a result of Australia's Free Trade Agreement with the US. David Vaile of the Cyberlaw and Policy Centre of UNSW believes the "overreach of American power" produced an FTA that was "unbalanced". "It was a partial harmonisation with only those parts of American law that favoured certain interests," he said.

Meanwhile Australian judicial opinion is that while copyright infringement, particularly on a large scale, is clearly wrong, extradition seems disproportionate. Griffiths’ lawyer Nicolas Patrick claimed his client was the real victim. "Effectively my client was sent to face charges in a foreign country where he has no knowledge of the legal system and no friends or family," .he said "He has been surrendered to a country where the penalties for such offences are much harsher." With no Australian citizenship to protect him, it is possible he will be deported from Australia after he completes his sentence.