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Digital Legal Top Stories
British student facing extradition to US over copyright infringement
By CMU Editorial | Published on Wednesday 14 March 2012
A British student is facing extradition to the US to face copyright crime charges after Home Secretary Theresa May rubber stamped an application by American authorities to force the alleged infringer in front of the US courts. Another hearing on the US’s extradition application will still have to happen, but some of Richard O’Dwyer’s supporters hoped May would block the American’s bid here and now.
This story has been rumbling on for some time, and centres on a website that O’Dwyer ran called TVShack, which provided links to unlicensed content available on various video sharing platforms. Several such services emerged in the latter years of the last decade as websites like YouTube became more efficient at removing unlicensed videos at the request of content owners.
Of course as content was removed from one bit of YouTube, someone else was re-uploading the same content elsewhere on the Google-owned platform, or a competing video sharing sites. In most cases, that content would then be taken down a few days or weeks later, but by that point it had been uploaded elsewhere. Link sites like TVShack – and another targeted by the UK authorities called TV-Links – became useful because it helped users looking for unlicensed TV show content to find the latest uploads without having to navigate all the pages where videos had been blocked
As such sites basically hindered the content takedown systems the video sharing sites offered rights owners, and which the music, movie and TV companies were using with increased frequency, the big content owners started to target the link providers too, accusing them of liability for contributory infringement (by helping others to infringe). And where the owners of those sites were profiting from ad sales, the copyright owners persuaded the authorities to pursue criminal investigations.
Of course those who operated such sites quickly pointed out that they didn’t actually host any infringing content, which is never a watertight defence against contributory infringement claims, but has worked on occasion in this domain.
Whereas TV-Links ended up being pursued by the UK authorities, O’Dwyer’s site was targeted by American state copyright enforcers, even though the service was being run from Yorkshire and was hosted on servers in Sweden. In June 2010 the US Immigration And Customs Enforcement agency seized the original TVShack domain and posted a stern copyright warning in place of O’Dwyer’s website. But, in what was probably his biggest mistake, O’Dwyer set up a new domain at TVShack.cc and within a few days his website was live again. It wasn’t until November that year that the new domain was seized too, and it was at that point UK police and US officials showed up at O’Dwyer’s Yorkshire home.
America’s efforts to extradite the student to face copyright crime charges back in the US are somewhat controversial, and pose a number of questions. First, is there actually a case for copyright infringement against the accused under UK or Swedish law (where the site was managed and hosted respectively)? Second, should this be a criminal case (usually infringement has to be commercial for criminal proceedings to be pursued rather than civil litigation)? And even if there is a case for criminal copyright charges, shouldn’t O’Dwyer be prosecuted under British law?
Add the fact that O’Dwyer will be handed over to the Americans under the already controversial 2003Extradition Act, which critics say puts too low a burden of proof onto the US, and you can see why a community of angry supporters of the student have been getting increasingly vocal online. May’s ruling on the matter yesterday has pushed the story up the news agenda, meaning that outrage can only grow as O’Dwyer faces his final extradition hearing. Not that that will necessarily sway the court, though it will provide more ammunition for the anti-copyright (or anti-big-copyright-owners) community.
There is actually a case against O’Dwyer under English copyright law, even though he never actually hosted infringing content, and even though the English concept of ‘authorising infringement’ is slightly different than the American principle of ‘contributory infringement’ that has been used in most of the big court cases involving the providers of file-sharing software or services Stateside. And UK courts have ruled against Newzbin and The Pirate Bay on those grounds. But then again, the legal case pursued by the British authorities against TV-Links, a very similar service to TVShack, failed in court.
Whether there’d be a criminal case against O’Dwyer under UK law would depend on whether prosecutors could show the student profited from his enterprise, and that that was a motivating factor for running the venture. Efforts in the British courts to prosecute the founder of the Oink file-sharing community failed because it couldn’t be proven that set up was a deliberately commercial venture. The US authorities reckon O’Dwyer made $230,000 from ad sales via the TVShack site, and under English law that claim would be key to any criminal case.
But, as O’Dwyer’s supporters, led by his angry mother, say, even if there is a criminal case, does that justify dragging the student to America to face any charges. Given the jail sentence for such crimes in the US could be five years, versus two years in the UK, O’Dwyer would certainly be better off facing the allegations against him here, before you even consider the stresses of facing a court hearing and possible custodial sentence in a foreign country. Though those arguments have not, so far, had much impact with the powers that be. O’Dwyer now has two weeks to appeal May’s ruling.
