New South Wales Federal Court of Appeal rules that evidence supplied by United States with its request that Australia extradite one of its residents for his leading role in conspiracy to pirate and distribute millions of dollars of software in U.S. and elsewhere showed conformity to requirement of "dual criminality"
On March 12, 2003, a federal grand jury sitting in Virginia indicted Hew Raymond Griffiths (appellant) having a screen name of "Bandido," with conspiring to engage in, and to have in fact engaged in, internet software piracy in the United States in violation of its federal criminal copyright laws. The infringed items included copyrighted software, computer games and movies.
The violations consisted of their reproduction and distribution over the Internet, during 2000-2001, of at least ten (10) or more copies of one or more of the copyrighted works having a total estimated retail value of many millions of dollars. The criminal organization had about 60 members and called itself "Drink or Die" (DOD).
The American authorities have asked for his extradition from Australia under the Extradition Act 1988 (Cth) (the Act). Although the U.S. has alleged that appellant has been committing these offenses in the United States, at all pertinent times appellant was residing in Australia. Requesting his extradition under the Extradition Act of 1988 (Cth) (the Act), the U. S. filed an affidavit that described the investigations leading to the charging of appellant, the grand jury's indictment and the charged offenses together with their elements and the evidence supporting them.
A magistrate sitting in New South Wales ruled that, pursuant to Section 19(10) of the Act, appellant was not eligible for surrender. In review proceedings under Section 21 of the Act, a judge of the Federal Court in Sydney held to the contrary.
Appellant appealed. Although he raised, inter alia, several issues about the sufficiency of the supporting documents, the more novel ground of appeal lies in the question of whether the U.S. request has satisfied the "dual criminality" demands of Section 19 (2)(c) of the Act. The Federal Court of Appeal, in a per curiam opinion, dismisses the appeal and holds that the appellant is eligible for surrender in relation to both extradition offenses.
DOD members began their pirating with the work of "suppliers" who upload new software on to DOD's "drop site" before the manufacturers' public release date. (The U.S. describes the drop site as a secure computer site hosted by a DOD member on the computer network of the Massachusetts Institute of Technology in Boston.) Other DOD members known as "crackers" would then remove the software from the drop site and use their skills to "crack" the software's embedded copyright protection. Next "testers" would give the software a quality test, "packers" would break it apart and "couriers" would prepare it for distribution to DOD computer storage sites worldwide.
The Appellate Court explains further. "For the purposes of Section 19(2) of the Act, the conduct constituting the extradition offences in the U.S., or equivalent conduct, must be such as would have constituted an extradition offence or offences in the part of Australia where the Section 19 proceedings are being conducted (the counterpart offences)."
"The counterpart offences relied upon in the present Section 19 proceeding are offences against Commonwealth laws. They are conspiracy under Section 11.5 of the Criminal Code and copyright infringement under Section 132(2) of the Copyright Act 1968 (Cth). ... Section 132(6) imposes a territorial limitation on this offence by providing that Section 132 only applies in respect of acts done in Australia." [¶¶ 42-43]
"Accordingly, we agree with [the lower court's] conclusion that there was a sufficient statement of the conduct constituting the conspiracy offence in the supporting documents and that it could be discerned from the paragraphs in count 1 of the indictment when considered in light of [the U. S. prosecutor's] explanation of the necessary elements of the offence. We reject this ground of appeal." [¶ 64-65]
The Court of Appeal then turns to the double criminality element. "The alleged insufficiency of the statement of conduct for Section 19(2)(c)'s double criminality purposes is at the heart of this ground. The contention is that to assert that copyright exists in a work and has been infringed is to assert legal conclusions according to the law of a particular jurisdiction, which conclusions are derived from the application of legal rules to ascertained facts. ... This is because the supporting documents are insufficient to indicate whether (a) the material which was reproduced or distributed in the U.S. would attract copyright protection in Australia or (b) the reproduction or distribution constituted an infringement in this country."
"Nonetheless, what is clear from the supporting documents is that there is a common field of discourse concerning copyright between the two countries. ... Though not a matter of evidence, counsel for the U.S., in drawing attention to Section 184 of the Copyright Act and the Copyright (International Protection) Regulations 1969 (Cth), noted that the U.S. was a party to the Berne Convention and was a member of the World Trade Organisation." [¶ 73]
"Before dealing with the parties' contentions, it is necessary to comment briefly on Section 19(2)(c). For present purposes it is sufficient to reiterate observations made ... in Dutton v O'Shane (2003) 132 FCR 352; 200 ALR 710 at [58]: "The relevant inquiry mandated by Section 19(2) of the Act is not whether there is a correspondence between the legal elements of offences under the municipal criminal laws of the requesting State and of the relevant part of Australia. It is whether the conduct constituting the offence in the requesting State constitutes ... an extradition offence in that part of Australia in which the proceeding is conducted. The relevant inquiry is conduct based, hence the significance of the statement of the conduct constituting the offence in Section 19(3)(c)(ii).'" [¶ 77].
"The reason it is said the above matters establishing notional Australian copyright and infringement must be made out factually in the supporting materials is because an assertion in the supporting documents that there has been an infringement of a copyright work (that is, under U.S. law) is not determinative of any issue under the Australian Copyright Act. The relevant work may not be copyright in Australia. The copyright owner may be different in Australia. And the "infringement' of copyright may not be an infringement under Australian law."
"To illustrate the point, it is said that if the supporting materials had asserted that [appellant] had copied an identified computer program, and that computer program was not copyright under Australian law, then [appellant] could not be extradited -- he would not have committed an offence under Australian law. If, instead of identifying the work, the U. S. materials had merely asserted that [appellant] had copied a "copyright computer program', then the mere lack of detail and absence of supporting facts could not transform what would otherwise be a non-extraditable act into an extraditable act." [¶¶ 80-81].
"As the lower court judge correctly stated: "the exercise of practical judgment which the Magistrate was required to carry out was to consider whether, if Mr Griffiths, while physically located in the United States, made an agreement, perhaps initially in the United States, to steal, reproduce and distribute Australian copyright works by obtaining access to a computer system situated in Australia, and by carrying out five overt acts of the conspiracy, either by himself or through co-conspirators in Australia, his conduct would necessarily involve the offence of conspiracy to infringe copyright in New South Wales. The answer to this is plainly that it would constitute such an offence.'" [¶ 91]
"It is, in our view, clearly the case that the conspiracy alleged in this matter was a continuing offence [cite] and that the conduct by virtue of which this particular conspiracy, in this particular case, was alleged to have been committed included the continuing performance of the agreement up to and including the [copyright infringements]."
"That conduct included not merely such acts as may have been performed by [appellant] personally but the conduct constituting its performance by others: on the admissibility of evidence of the acts and declarations of others against an accused conspirator. [Cite]."
"The conduct in performance so described in the indictment (but especially in the overt acts) as also in the affidavits, occurred in the U.S., and this was so in relation to actions of [appellant] notwithstanding his physical presence in New South Wales. Simply by way of illustration of this, three of the overt acts relied upon in the indictment related to the installation and use of the DOD site, "Fatal Error' in Dulles, Virginia." [¶¶ 94-96]
"Whatever may have been the particular place of origin of the conspiracy in so far as it concerned [appellant], the conduct constituting the offence, given its continuing character, can properly be said to have occurred in the U.S. and this includes [appellant's] own conduct notwithstanding his actual physical presence in New South Wales."
"We do not refer to this, for the purpose of inquiring impermissibly into whether the U.S. properly had jurisdiction to entertain the matter. [Cite]. Rather it identifies the U.S. conduct that is to be considered for the double criminality purposes of Section 19(2)(c). It is conduct, we would emphasise, that is devoid of any relevant extra-territorial element."
"In our view, the court below committed no error in making the factual transposition [noted] above, nor in reaching the conclusion he did in light of it." [¶¶ 97-99].
"[The U.S. affidavit] and the exhibited indictment together indicate the context in which the conspiracy and copyright infringement occurred. It was one in which pirated software was to be provided to the underground Internet software piracy community. When a pirated product was released by DOD couriers, DOD members world-wide would be able to access the cracked software and, [according to the affidavit,] "were able to provide it to anyone they wished; as a result, unauthorised copies of copyrighted software were soon available to anyone with a computer and access to the Internet'." [¶ 105]
"Given the object of the conspiracy, the manner of its performance and the resultant open access it gave to software that was otherwise intended for commercial gain, it would in our view be open properly to infer [cite] that the release by DOD of any cracked software programme to its own sites would of itself without more "[affect] prejudicially the owner of [that] copyright' [under] Section 132(2)(b). The reason for this is that an alternate and illegitimate source for the owner's work knowingly would have been created with the intent that it be used by members who would make it available to others. The evidence in the supporting documents is that such sources were so used."
"This is not the basis upon which his Honour found that the requirement was made out, though it would be our preferred basis for concluding that the double criminality requirement had in this respect been satisfied." [¶¶ 107-108]
Citation: Griffiths v. United States, 2005 F.C.A.F.C. 34; 214 A.L.R. 665 (Fed. Ct. App. Aust. 2005).
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