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.
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.
O’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?
It 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.