By RICHARD PAMATATAU
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.