http://www.nzherald.co.nz/storydisplay.cfm?storyID=3589541
By RICHARD PAMATATAU
07.09.2004
New Zealand software pirates risk extradition to the United States
following a ground-breaking ruling against an Australian man accused
of pirating software, games and music worth up to US$50 million.
Mark Kelly, senior associate at Auckland's Simpson Grierson, said the
Hew Raymond Griffiths case in Australia confirmed that people based in
one country and accused of software piracy could be brought to justice
in another under extradition law.
Locally, Microsoft has led the charge against software piracy and
brought prosecutions against individuals infringing its copyright.
The largest software piracy cases involve hundreds of thousands of
dollars.
Kelly said the United States was on an international hunt for internet
pirates.
US crime agencies fought hard to obtain an order to extradite
Griffiths following an unsuccessful attempt where an Australian
magistrate denied their extradition request.
The US appealed against that decision and has now won the right to try
Griffiths in the US.
Kelly said that ringleader Griffiths, who went under the online name
BanDiDo, was an Australian who had never been to the US.
He said the case was making Australian legal history because it was
the first extradition case under copyright law.
"This case confirms that internet pirates based in one country are not
always safe from the laws of other countries."
Griffiths has been charged in the US with conspiracy to infringe
copyright and copyright infringement, for reproducing without
authority and distributing software protected by copyright on the
internet.
The US alleges that Griffiths was the ringleader of an internet group
called DrinkorDie which allegedly worked from a computer network at
Boston's Massachusetts Institute of Technology. Griffiths helped to
control access to the network, though it is not alleged that he made
money from his activities.
Eleven DrinkOrDie members already have been convicted in the US.
Kelly said Griffiths' alleged infringements all took place on his home
computer in Australia.
Should the extradition and trial proceed he faced up to 10 years in an
American jail and a fine of up to US$500,000.
Wayne Hudson, Software Exporters Association president, said his
organisation would watch the developments with interest.
He said the issue of software piracy might have increasing
significance in free trade agreements.
Copyright infringement was a huge issue globally but especially in
China, he said, so the case might have implications there as well.
While the copyright offences were "found to have occurred in the US",
Griffiths had never been to the US and was not a "fugitive" in the
sense that he was fleeing and hiding from the extradition-seeking
country, Hudson said.
Kelly said: "It means technically that a software pirate in Grey Lynn
could end up in an American court, even though copyright infringement
or conspiracy to do so are not the usual offences that come before the
court."
He said It could also mean that Australians infringing New Zealand
copyright could be extradited and vice versa.
Under New Zealand law, if a person accused or convicted of an
"extradition offence" is suspected of being in another country, or on
his or her way to another country, New Zealand may request that
country to surrender the person under the Extradition Act 1999. The
maximum penalty is jail for at least a year.
Kelly said New Zealand could seek extradition of copyright pirates and
trademark counterfeiters if the actions of those offenders fell within
the relevant New Zealand legislation such as the Copyright Act, which
carries a five-year maximum prison sentence.
Microsoft spokeswoman Carol Leishman said her company preferred to
take action in the local jurisdiction. It had already brought
successful actions around the world.
She said Microsoft would continue to watch developments.
Maarten Kleintjes, national manager for the NZ Police electronic crime
laboratory, said his group would look at cases of copyright
infringement if they were sufficiently serious.
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