Cross-national investigation and prosecution of intellectual property crimes: The example of "operation Buccaneer"

Crime, Law and Social Change

Volumn 46, Issue 4-5, 2006, Pages 207-221

  Urbas, Gregor ^a  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

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EID: 34247159473     PISSN: 09254994     EISSN: 15730751     Source Type: Journal    
DOI: 10.1007/s10611-007-9060-x     Document Type: Article

References (56)

1. See US Department of Justice, 'Operation Buccaneer': http://www. cybercrime.gov/ob/OBMain.htm.
2. See further Grabosky, P, 'Crime in a Shrinking World,' Trends and Issues in Crime and Criminal Justice, No. 83 (1998), Australian Institute of Criminology; http://www.aic.gov.au/publications/tandi/tandi83.html.
3. The activities of organised "warez" groups involve obtaining access, usually without permission from copyright owners, to business or entertainment software, "stripping" or "cracking" it to remove anti-copying protections, and then distributing it through specialised warez websiles to users: see Goldman, E (2004a), 'Warez Trading and Criminal Copyright Infringement: Part 1,' Informit.com (January 23, 2004): http://www. informit.com/articles/articlc.asp?p=169520.
4. See Borland, J, 'US attempt to extradite 'Drink or Die' defendant blocked,' CNet News.com, ZDNet UK (March 26, 2004): http://news.zdnet.co.uk/ business/legal/0,39020651,39149916,00.htm.
5. US Department of Justice, 'Federal Law Enforcement Targets International Internet Piracy Syndicates' (December 11, 2001): http://www.usdoj.gov/opa/pr/ 2001/December/01_crm_643.htm and http://www.cyber crime.gov/warezoperations.htm.
6. US Customs Service, 'The "DrinkOrDie" Group: What is it? Who are they? What is the DrinkOrDie Group?' (Fact sheet dated December 11, 2001): http://www.customs.ustreas.gov/hot-new/pressrel/2001/1211-01.htm.
7. See Malcolm, J, Speech to the Progress and Freedom Foundation, Aspen Summit 2002 (August 20, 2002): http://www.techlawjournal.com/intelpro/20020819. asp. Abbreviations: IRC Internet Relay Chat; ID Identification; IP Internet Protocol.
8. See US Customs Service, above.
9. US Customs Service, 'US Customs Service Dismantles One of the World's Most Sophisticated Internet Piracy Networks: 'Operation Buccaneer' Targets 'Warez' Cyberspace Gangs and their Multi-Billion Dollar Software Piracy Scheme' (December 11, 2001): http://www.customs.ustreas.gov/hot-new/pressrel/2001/1211- 00.htm.
10. Manjoo, F, 'Were DrinkOrDie Raids Overkill'?,' Wired.com News (December 13, 2001): http://www. wired.com/news/technology/0,1282,49096,00.html.
11. See Nasheri, H, "Addressing Global Scope of Intellectual Property Law" (unpublished report prepared for the National Institute of Justice, The International Center, US Department of Justice, November 2004): http://www.ncjrs.gov/pdffiles1/nij/grants/208384.pdf.
12. The British detective who led the United Kingdom inquiry into DrinkOrDie suspects is quoted as saying that it was wrong to think of its members as "Robin Hoods," stealing software from rich corporations and distribution it free on the Internet: BBC News, 'Pair convicted of internet piracy' (March 16, 2005): http://news.bbc.co.uk/l/hi/technology/4336401.stm. The copyright offence provisions of the jurisdictions under consideration make clear that adverse effects on the interests of copyright owners, as well as any illicit gains made by infringers, suffice to render the conduct criminal.
13. US Department of Justice, 'Federal Law Enforcement Targets International Internet Piracy Syndicates' (December 11, 2001): http://www.usdoj.gov/opa/pr/ 2001/December/01_crm_643.htm and http://www. cybercrime.gov/warezoperations.htm.
14. See US Customs Service, Press Release of December 11, 2001, noted above; Nasheri, above, p.54.
15. See Lemos, R, 'FBI raids cripple software pirates,' CNet News.com (December 19, 2001): http://news. com.com/2100-1023-277226.html; and CNetNews.com, 'Dutch university targeted in piracy raids' (December 20, 2001): http://news.com.com/2100-1023-277295.html.
16. See US Department of Justice, 'Operation Buccaneer': http://www. cybercrime.gov/ob/OBMain.htm; and 'Warez Leader Sentenced to 46 Months', Media Release (May 17, 2002): http://www.cybercrime.gov/sankusSent.htm.
17. Note that investigations of software and other forms of piracy may also involve private sector investigators, often cooperating with official agencies, and sometimes using covert methods: see Wakefield, J, 'Undercover agent fights net piracy,' BBC News (May 30, 2004): http://news.bbc.co.nk/l/hi/technology/ 3751195 .stm.
18. See US Customs Service, Press Release of December 11, 2001, noted above.
19. See MIT News Office, 'MIT cooperating in six-nation computer piracy raid' (December 12, 2001): http://web.mit.edu/newsoffice/2001/computerpiracy.html; and 'MIT issues statement on computer misuse' (December 12, 2001): http://web.mit.edu/newsoffice/2001/computerbmce.html.
20. There is relatively little English-language information available on the Operation Buccaneer raids carried out in Norway, Sweden and Finland, but for a Swedish-language news article, see Holström, L, 'Stort tillslag mot internalionellt nätverk for piratkopiering,' Aftonbladet (December 12, 2001): http://www.artonbladet.se/vss/it/story/0,2789,113842.00.html.
21. See US Department of Justice, 'First Defendants in One of the World's Most Sophisticated Internet Piracy Syndicates Charged in L.A.' (January 22, 2002): http://www.cybercrime.gov/kartadinata_nguyenPlea.htm.
22. Goldman, E, 'Warez Trading and Criminal Copyright Infringement: Part 2,' Informit.com (April 9, 2004): http://www.informit.con/articles/article.asp?p= 170497&seqNum=4&rl=l.
23. See US Department of Justice, 'Leader of Internet Software Piracy Organization Pleads Guilty to Conspiracy' (February 27, 2002): http://www.cybercrime.gov/sankusPlea.htm;
24. and 'Warez Leader Sentenced to 46 Months' (May 17, 2002): http://www.cybercrime.gov/sankusSent.htm.
25. See US Department of Justice, 'Member of "DrinkOrDie" Warez Group Sentenced to 41 months' (July 2, 2002): http://www.cybercrime.gov/ob/ Pattanay.htm; and Goldman, noted above.
26. See Smith, R, Grabosky, P and Urbas, G (2004), Cyber Criminals on Trial, Cambridge University Press, pp. 117-122.
27. See BBC News, 'Eight arrested over software piracy' (December 12, 2001): http://news.bbc.co.uk/1/hi/uk/1705079.stm;
28. and 'Internet piracy trio sent to gaol' (May 6, 2005): http://news.bbc.co.uk/1/hi/technology/451877l.stm. The offence of conspiracy to defraud in the context of computer crime is partly governed by provisions of the Computer Misuse Act 1990 (UK), which is the United Kingdom's main statute on computer crime. The main intellectual property statute is the Copyright, Designs and Patents Act 1988 (UK), which contains copyright infringement offences.
29. See BBC News, noted above, and Summers, C, 'The pirates with no profit motive,' BBC News (May 6, 2005): http://news.bbc.co.uk/1/hi/technology/4205559. stm; and 'Pirate or harmless computer buff?,' BBC News (May 6, 2005): http://news.bbc.co.uk/1/hi/technology/4288931.stm. lan Dimmock, an IT manager from Kent, and Denis Osdashko, a Ukranian student living in Streatham, both pleaded guilty to Copyright Act violations and received a fine. Andrew Eardley, a Staffordshire IT manager, and Mark Vent, who worked in the IT department of a London firm, pleaded guilty to conspiracy to defraud and were each sentenced to 18 months, with Eardley's sentence suspended for 2 years.
30. See BBC News, 'Internet piracy trio sent to gaol' (May 6, 2005): http://news.bbc.co.nk/1/hi/technology/4518771.stm.
31. See US Department of Justice, 'Defendant Indicted in Connection with Operating Illegal Internet Software Piracy Group' (March 12, 2003): http://www.cybercrime.gov/griffithsIndict.htm;
32. and Lamont, L, 'Wanted: for ling-distance geekiness,' Sydney Morning Herald (June 29, 2004): http://www.smh.com.au/articles/2004/06/28/ 1088392605562.html?from=storylhs.
33. As quoted in Summers, where Griffiths is described as being "British-bom." Because he migrated to Australia as a child but did not take Australian citizenship, there are concerns that he would be unable to return to Australia if extradited and convicted in the United States: see Hayes, S, 'Local fights US piracy charges,' AustralianIT (January 10, 2006): http://australianit.news.com.au/cominon/print/0,7208, 17771541%5E15306%5E%5Enbv%5E,00.html.
34. In September 2005, the High Court of Australia heard Griffiths' application for special leave to appeal against a Full Federal Court decision clearing the way for his extradition: Griffiths v United States of America and Anor [2005] HCA Trans 666 (2 September 2005).
35. The current statute is the Copyright Act 1968 (Cth), under which significant fines and imprisonment to a maximum of 5 years may be for commercial copyright infringement offences (e.g. s132). In the first federal (Commonwealth) Copyright Act enacted in Australia, the Copyright Act 1905 (Cth), the terms 'pirate' and 'pirated' featured in the offence provisions:
36. see Urbas, G, 'Public Enforcement of Intellectual Property Rights,' Trends and Issues in Crime and Criminal Justice, No. 177 (2000), Australian Institute of Criminology: http://www.aic.gov.au/publications/tandi/ tandi177.html.
37. In particular, labels and marks on packaging and containers, and foreign certificates stating time and place of first publication of works, are now taken to be prima facie evidence of the subsistence and/or ownership of copyright in both civil proceedings (s126A and s126B) and criminal prosecutions (s132A). A similar provision relates to sound recordings (s132B). These amendments were incorporated by the Copyright Amendment (Parallel Importation) Act 2003 (Cth), which came into force on 15 April 2003.
38. See Urbas, G and Smith, R, 'Computer Crime Legislation in Australia,' Internet Law Bulletin, (2004) vol. 7, no. 2, pp. 53-56.
39. The Grand Jury indictment in the Griffiths case does not specify the copyright owners of the "copyrighted works, to wit, copyrighted software, computer games and movies" alleged (Count 2) to have been infringed by the activities of the DOD group, but does state that the group "sought to achieve a reputation as the fastest provider of the highest quality application and utility software (e.g. Symantec security software, Microsoft and AutoDesk applications) to the underground Internet software piracy community known as the 'warez scene'" (Count 1). Microsoft and AutoDesk, as well as other US-based software and entertainment businesses, have been regular litigators in the Federal Court and the High Court of Australia.
40. See Urbas, G, noted above; and Urbas, G and Grabosky, P, 'Cybercrime Jurisdiction: An Australian Perspective,' in B.J. Koops and S. Brenner (eds), Cybercrime and Jurisdiction: A Global Survey, T.M.C. Asser Press - IT and Law Series, The Hague (forthcoming in 2006).
41. In fact, the status of Australian copyright offences as summary rather than indictable has been argued (thus far without much success) as a ground invalidity of convictions under the Copyright Act 1968 (Cth). Summary offences typically involve a maximum penalty of 2 years' imprisonment, and the maximum penalty of 5 years for summary copyright offences (s132) is therefore anomalous by comparison. Moreover, s80 of the Australian Constitution requires trial by jury for indictable Commonwealth offences, so the argument on appeal has been that offences under the Copyright Act, carrying such a high maximum penalty as to put them in the category of "serious offences," ought properly to be triable on indictment and therefore before a jury. However, the argument has not been accepted by the Federal Court of Australia, which has affirmed that it is the legislature's choice whether to enact offences as summary or indictable, and the s80 guarantee applies only to those which are made indictable, irrespective of the gravity of the penalty involved: see Ly v Jenkins [2001] FCA 1640 (26 November 2001).
42. Oral testimony of Mr. John G. Malcolm, Deputy Assistant Attorney General, Criminal Division, United States Department of Justice, Hearing Before the Subcommittee on Courts, the Internet and Intellectual Property, Committee of the Judiciary, House of Representatives, United States Congress (March 13, 2004): http://commdocs.house.gov/committees/judiciary/hju85643.000/hju85643_0.htm.
43. Griffiths' then Legal Aid Commission lawyer Antony Townsden, as quoted in Lamont, L, 'Accused web pirate back behind bars,' Sydney Morning Herald (July 8, 2004): http://www.smh.com.au/articles/2004/07/07/1089000229684.html? feed=rss. See also Maslog-Levis, K (2004), "US fights to extradite Internet 'pirate,'" ZDNet Australia (July 8, 2004): http://news.zdnet.co.uk/ business/legal/0,39020651,39159881,00.htm.
44. See United States of America v Griffiths [2004] FCA 879 (7 July 2004), heard before Jacobson J. The Magistrate who made the extradition decision, Daniel Reiss, is named as second respondent in the proceeding.
45. See Griffiths v United Stales of America [2005] FCAFC 34 (10 March 2005), before Whitlam, Finn and Conti JJ. The Magistrate is named as the second respondent in this proceeding also.
46. As set out in the judgment of Jacobson J at par [6]-[9] and [21]-[32].
47. Interestingly, the Magistrate regarded the extradition application as unusual also because the charge related to internet fraud involving "modern technical matters concerning computers and the internet" and because copyright and conspiracy offences were not the usual kinds of extradition offences which come before courts in Australia: par [21]-[25].
48. Per Jacobson J at par [101], citing Deane J in Riley v Commonwealth of Australia (1985) 159 CLR 1. The Full Court found no error in His Honour's approach to the law on extradition or its application to the facts in Griffiths' case: par [90]-[100] of the appeal judgment.
49. Per Jacobson J at par [75]-[98], and the Full Court at par [42]-[46] and [66]-[72].
50. Per the Full Court at par [96].
51. See Griffiths v United States of America & Anor [2005] HCA Trans 666 (2 September 2005).
52. Per Gummow, Hayne and Callinan JJ. Special leave applications may be heard by a single Justice of the High Court, or a bench of two or three. Time is normally limited to 20 min for oral argument from each side, including questioning from the bench. In the most recent Annual Report of the High Court (for the year 2003-2004), the available figures indicate that 386 special leave applications (291 civil and 95 criminal) were heard, and leave to appeal was granted in only 70 cases (54 civil and 16 criminal): see http://www. hcourt.gov.au/annual_reports/2004annual.pdf.
53. See Hayes, S, 'Local fights US piracy charges,' AustralianIT (January 10, 2006): http://australianit.news.
54. At the time of writing, the Minister was still considering the Griffiths extradition matter. In a Senate Committee hearing in May 2006, the First Assistant Secretary of the Criminal Justice Division within the Attorney-General's Department described the process being followed (Senate Legal and Constitutional Legislation Committee, Senate Hansard 24 May 2006, p. 169):
55. From [the] 2 September decision, the process that then takes place is the preparation by the department of a submission for the minister in accordance with section 22 of the act. That submission is required to consider both the mandatory and discretionary grounds for refusal under both the act and the treaty. The minister also has a general discretion. The requirements of natural justice point us to inviting submissions from the person who is to be extradited, which then have to be considered by the minister. So the process involves further engagement with the person if they wish to make submissions and further inquiry by the department to enable us to prepare a submission on the basis of which the minister can make a lawful decision to surrender or not surrender the person. In the interim, there has been a degree of local media commentary agitating for the extradition request to be refused:
56. see, for example, Ackland, R, 'Another one sacrificed in the name of alliance,' Sydney Morning Herald (February 16, 2007): http://www.smh.com.au/ news/opinion/another-one-sacrificed-in-the-name-of-alliance/2007/02/15/ 1171405371677.html