The extradition of TVShack's Richard O'Dywer: is it right?

Filed Under: Featured, Law & order

picture of Richard ODwyer from TVShack.net

UK student Richard O'Dwyer is facing copyright infringement charges in the US for running TVShack.net, a site that provided links to movies and television series infringing copyright.

On the 13th January, Westminster Magistrates Court confirmed that the 23-year-old could be extradited to the US for trial.

This case highlights broader policy issues about US-UK extradition relations, not to mention US attempts at extending its jurisdiction for enforcement of alleged copyright infringement offences.

Before the site domain was seized in 2010, it is reported that O'Dwyer made about £15,000 per month in advertising revenues. If you visit the site at the time of posting this article, you will see this image shown below.

ICE_logo

If you click on the image, you are shown a "Piracy is bad" video hosted on YouTube.

Since mid-2010, US Immigration Customs Enforcement (ICE) has been following a campaign of domain name seizures for illegal websites called Operation in Our Sites.

TVShack.net was an ICE target but was not hosted on servers inside the US. The .net gTLD suffix is managed by US registry operator Verisign and ICE used this link as a basis for asserting jurisdiction to prosecute TVShack.net.

tv-shack_logoO'Dwyer is UK-based, and apart from the .net domain, there doesn't seem to be any other direct ties with the US. Well, other than the content being produced by US-based creative industries of course.

In this judgement, O'Dwyer's counsel, Ben Cooper, sought to rely on, the 'mere conduit' defence of Regulation 17 in the UK E-Commerce (EC Directive) Regulations 2002.

This legislation provides protection from liability when the service has limited control over its transmissions. Relying on the similar 2010 UK 'TV-Links' case, O'Dwyer's counsel claims that Regulation 17 prevents other legitimate linking services like search engines being challenged for copyright infringement, and, he argues, TVShack should be treated similarly.

Unfortunately for O'Dwyer, Judge Purdy didn't accept this argument because O'Dwyer actively chose what links were posted on TVShack.net and exerted control over transmissions in excess of a 'mere conduit'.

s78, in Part II of the controversial Extradition Act 2003, has a 'dual criminality' requirement. This procedural step requires conduct to be a criminal offence in both the UK and the US.

Judge Purdy was satisfied that the alleged conduct was a chargeable criminal offence in the UK, namely s107 (2A) of the Copyright, Designs and Patents Act 1988. Whether he could be convicted of this "dealing with infringing content" offence is another matter. The appeal may readdress this issue, but if he gets tried in the US anyway we may never know the answer.

Although the procedural extradition requirements have been met, it raises the question: why extradite Mr O'Dwyer to the US when the alleged offence was committed within the UK and there is a suitable chargeable crime available in UK law?

Gary MckinnonIt is difficult to discuss unfair extradition process without mentioning the plight of alleged hacker Gary McKinnon. Although indicted on severe alleged charges, hacking into various US databases including NASA and the US army, his extradition case now been dragging on for 9 years.

Such a long process has to be avoided for O'Dwyer. It simply seems unjust when when the UK courts and legal system can try the case in the UK rather than rely on a foreign legal system.

General concerns regarding the imbalance in UK-US extradition process have come to the political fore recently. Significantly more UK citizens are extradited to the US than vice versa, leading to suggestions of a review by the UK Human Rights Joint Committee, and recent debate in the House of Commons.

I hope this increased political scrutiny may see the development of a more balanced extradition process. Greater efforts to prevent extensions of US jurisdiction in O'Dwyer's case at appeal may be the first step in the right direction.

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22 Responses to The extradition of TVShack's Richard O'Dywer: is it right?

  1. Anon · 1010 days ago

    last I checked we were not ruled over by the United States Government so no he should not stand trial over there.

    If the creative industries wish to try him they should use the UK offence and charge him here.

    I am tired of us bowing to America's every whim like a slave state.

    • Anonayank · 1009 days ago

      If he didn't want to abide by US law then he shouldn't have used a US domain. I'm sure there was some .uk domain that would have suited his needs.

      If a scam artist from the US had a telephone number from London, would you feel it was ok for the police to tell you that their hands were tied?

      • Mike · 1007 days ago

        They do, frequently!

      • UK_Resident · 1007 days ago

        Anonayank your little analogy is pretty off. For while .NET is generally considered a U.S domain name, the actual site in question is not in fact hosted in America therefore not under their jurisdiction - no authority to be attempting to charge the man on anything.

        The analogy use of the "scam artist" from the U.S has a telephone number that, well, only looks like its from London. It is not.

        Anonayank you are basically saying that if I, a Brit living in Britain, has a website which name ends in .Net or .Com then I must then abide by USA law simply on that basis. Total Garbage

    • anon · 1009 days ago

      An an American Citizen, I sympathize with you. Because the big media companies have deep pockets, their concerns are addressed before any other crime. I imagine it didn't take them long to build a case Richard O'Dwyer. Money was involved, and the media companies were not getting their cut. Hence, he will now pay for it in other ways. I compare this case to the case of Whitey Bulger. Bulger is a Boston gangster, who subverted the Boston FBI. In 1994, when he was about to get arrested, an FBI agent, who had, in turn, been turned by Bulger, informed him of this, and he left town. The law did not catch up with him until 2011. I guess there's a big difference in justice when your victims can afford to make certain campaign contributions. Bulger is responsible for multiple murders in the Boston area, and is presently charged with 19.

    • You're just upset we kicked your butt and threw you out back 240 years ago or so!

      • Davison · 1008 days ago

        You mean when France saved your ass and paid the bills?

      • Diomedea · 1008 days ago

        You need to learn some real history instead of relying on fable, unless by "we" you mean "the rebels, the French, the Dutch, the Spanish and their allies", by "you", you mean "the loyalists and government troops", and by "whipped you butt", you mean "fought to a standstill". At the end of Yorktown, there were still more loyal troops on American soil than in the Continental army. If the government had not been fighting a war on multiple fronts against much more significant opposition than the rebel army, and if there had not been popular sympathy in Great Britain for resistance against the crown, then it is quite likely that there would have been some reform and political compromise, which is what typically happened following popular revolts in Britain (common features of British history). This might then have avoided some of the atrocities carried out by rebels against loyalists, many of whom were persecuted and killed or driven from their lands.

        But this, while fascinating is all off-topic. If there is a similar law in the UK, then he should be tried there. The asymmetry of extradition should also be addressed.

  2. Gavin R. Putland · 1009 days ago

    If the American jury thinks O'Dwyer's likely sentence is excessive, it can acquit him regardless of the "law" and the facts, and the acquittal is binding. It's called "jury nullification". But the jurors won't be told this in court. They'll need to hear about it from elsewhere. Spread the word!

  3. Zero One · 1009 days ago

    One word:
    megaupload

    R.I.P. Internet

  4. AndyB · 1009 days ago

    I know prison labour is big business in the US, but do they really need to start importing? The extradition law was amended in 2003 to help with the war on terror, not to allow the US to kidnap our people.

  5. Andy · 1009 days ago

    He shouldn't be sent to the states, if he has commited a crime under British Law (not that I say he has or hasn't) then he should stand trial in a UK court and as a British citizen he should be judged by our legal system.

    Perhaps its just easier for "someone" to say, "Ah, throw him to America, let them deal with it", but how will he get a fair trial if the legal system in the US is so easily manipulated by lobby groups and pressure from copyright holders.

    It seems far too easy for the US to get a British Citizen extradited. Looking back in time, bank robbers had a much easier time of it. Perhaps Richard needs to run away to Southern Spain and live with the "expats" there.

  6. This is wrong on so many levels for me and I think Richard should not be extradited to the US to stand trial.

    The principal of the 'dual criminality' test is obvious and understandable but equally is this test not be abused and incorrectly applied by our own courts? Surely the idea is that if someone has committed a crime in or against the USA (as a nation), which we also treat as a criminal act here in the UK, that person should be considered for extradition to the US, to stand trial in the US, for a crime they committed in or against the US, because he/she did not commit that crime in the UK . However, Richard is alleged to have committed his crimes here in the UK and not in (or strictly against) the USA.

    As such, then if he has allegedly committed a crime in the UK, in contravention of UK laws, then the Crown Prosecution Service should be asked, as they are in all UK criminal cases, to decided whether they feel Richard has a case to answer and should stand trial in the UK courts. If they think he has, then he should indeed stand trial by his peers in a UK court.

    There is no way, in Richard's case, he should ever be extradited to the US when we have the mechanisms and laws to prosecute him here in THE UK for allegedly breaking laws which are in place in the UK!

  7. Otto · 1009 days ago

    Since the UK legal system has determined he broke the law in the UK, he should be tried in the UK. It's absurd to waste all the money, time, and effort it would take to extradite him and put him on trial in the US.

    • Wile E Coyote · 1008 days ago

      Absurd it may seem, but it is a binding mutual extradition treaty. As long as the correct legal process was followed - and that seems to have been established at the recent magistrates hearing, then all subsequent steps fall into place.

      This is the same principle as Gary McKinnon and Julian Assange, both of whom are fighting perfectly valid extradition warrants - not on the basis that they protest their innocence, but on the grounds that process is unfair. How is it unfair? Nobody has been found guilty. There simply exists a valid extradition warrant and under English Law the defendant is obliged to be extradited to face those charges. Only then will his innocence or guilt be established.

      As for stretching the extradition out over many years, it is the legal teams who are responsible for that. The legal process is established in both directions and it's time to be a man and defend yourself in the court where the charges are laid.

      Richard knowingly broke the law of both the UK and the US. He made $240,000 in advertising fees from the site. When his original site was taken down by the authorities, he merely established a mirror with a .cc domain thumbing his nose at the Americans in particular. Well, young man, I think that has come back to haunt you.

      • Diomedea · 1008 days ago

        You make some good points, and the court appears to agree with you. But, it is right to challenge laws, and this process is part of establishing the applicability of laws under a common law system. Just because something is a law doesn't mean that it isn't contradicted by stronger laws. This particular law should probably be changed, especially for copyright infringement, which doesn't have much moral standing. Assange should probably be sent off to Sweden, though.

  8. Smart Young · 1008 days ago

    ICE does not stand for International Customs Enforcement but Immigration and Customs Enforcement.
    :-)

  9. Diomedea · 1008 days ago

    Nice article Lachlan, by the way. It is good to have a legal perspective on these topics.

  10. cyberhmoob · 1004 days ago

    America needs to stop bullying other countries. That's the bottom line. It's wrong and to wield GODLY powers by simply taking another countries CITIZEN & to trial them is crazy. They say Piracy is bad. What about American LUNACY?

  11. Paul · 1003 days ago

    This is the day the British government started committing human rights violations on order from Hollywood. Don't expect that this will be the last time either.

    The american government shut down a British company that was acting within the law in its country because Hollywood didn't "like" the way it was doing business - their reasoning behind why they can do this is technically and blatantly idiotic.

    Extradition is for terrorists and murderous.. not for websites that "link" to other websites from user generated content... Somebody needs to step in now and stop this worrying president!

    How long before we can't link to anything else in the comments section of say.. the bbc forums - on the risk that the fbi will shut down bbc.com and extradite those who run the bbc for trial in america?

  12. John · 1002 days ago

    OK. So how is Youtube legal?

  13. rintntn · 965 days ago

    Rollerball--Ihope I'm not guilty of anything for mentioning the title.This is evidence that we are not dealing with countries and laws. We are seeing the true rulers of the world. And that is the corporations.The menials that you have voted for are only the sockpuppets of the pseudokings of corporations and they will do their bidding for the scraps that fall from their tables. If it doesn't isolate America from the rest of the world, it will wash across the world like genghis khan, destroying everything and everyone that does not pay tribute to the corporate horde.

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About the author

Lachlan Urquhart is a legal academic from Edinburgh, Scotland who has completed an LL.B at the University of Edinburgh and recently concluded a postgraduate LL.M in Information Technology and Telecommunications Law at the University of Strathclyde. For more articles from Lachlan, visit his blog.