Richard O'Dwyer
On the 13th of January, it was ruled that Richard O'Dwyer's actions in running TVShack.com constituted a criminal offense in both UK and US law, with a judge approving his extradition to face charges of copyright infringement in a US court (maximum sentence, 10 years) being transferred to the Secretary of State[ref name="ruling" />http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/us-v-odwyer-ruling.pdf. He plans to appeal if the Secretary of State approves the extradition.
When I resolved to write letters1 about the procedure used for the extradition of Richard O'Dwyer, I expect I would be able to find quite a lot to adapt from people fighting his extradition explicitly. Worryingly, very few people seem to be doing so2. The three things that I could find are his Wikipedia page[ref name="wiki" />http://en.wikipedia.org/wiki/Richard_O%27Dwyer#US_charges_and_extradition_request, a Daily Mail report with input from ex-Liberal leader Sir Menzies Campbell QC3, and a post on an independent Liberal blog4.
A very broad interpretation of the extradition treaty (2003)[ref name="et-wiki" />http://en.wikipedia.org/wiki/Extradition_Act_2003 [ref name="et-text" />http://www.legislation.gov.uk/ukpga/2003/41/contents 5 is that a person can be extradited to the US if it's request, and they are found to have committed an offense that is criminal under both legal systems. It should also be required that the crime is within the jurisdiction of the legal system the person is extradited to, better noted as
What connection does the case have to America? How are they grounding prosecution there?
The only explanation for this I've stumbled across was a short note at the end of a guardian article6:
In July the [US Immigration and Customs Enforcement (ICE)] agency's assistant deputy director told the Guardian that ICE would now actively pursue websites similar to TVShack even if their only connection to the US was a website address ending in .com or .net. Such suffixes are routed through Verisign, an internet infrastructure company based in Virginia, which the agency believes is sufficient to seek a US prosecution.
Why did the Judge rule that his actions were illegal in the United Kingdom?
The ruling[backref name="ruling" /> is actually rather dense and unhelpful - although all the evidence is laid out, the judge's thinking is considerably more opaque. Everything that follows in this section is my interpretation of the ruling; in itself it is only 9 pages, and I recommend that you flick through it if you have a few minutes.
Precedent in English court's is that there is no copyright infringement for a purely dumb-pipe7 - in this context a website that exists solely to link to content regardless of the content itself, which permits the existence of search engines etc. The judge also used cases from other jurisdictions in his ruling. The major point as I read it was that TVShack was not being operated as a dumb pipe, but was selective in its offerings. From section 7:
Firstly both TVShack websites were entirely in the hands of Richard O’Dwyer and his co conspirators requiring third parties to sign up to TVShack and be vetted before going further. Secondly he argues, unlike Rock & Overton, there was no attempt to protect copyright, he, Richard O’Dwyer, knew materials were subject to copyright and actively taunted already cited efforts in June 2010 to seize TVShack.net.
By retaining some kind of control over the content - even just controlling who could add to it, O'Dwyer arguably stops acting as a mere conduit.
This is, naturally, being disputed on the web8 although nothing that I can find from the Open Rights Group or any other major group first hand, although there are some quotes around9
Where could I find out how the extradition treaty really works?
The Home Office Publication A REVIEW OF THE UNITED KINGDOM’S EXTRADITION ARRANGEMENTS (Following Written Ministerial Statement by the Secretary of State for the Home Department of 8 September 2010) Presented to the Home Secretary on 30 September 201110
- 1 ↑ //blog.harcourtprogramming.co.uk/post/thanks-of-the-day
- 2 ↑ Whilst writing more of this, I found a few extra posts. But, they only showed up when looking for different key words
- 3 ↑ http://www.dailymail.co.uk/news/article-2087135/Richard-ODwyer-US-extradition-pact-misused-says-Sir-Menzies-Campbell.html
- 4 ↑ http://www.libdemvoice.org/stop-the-extradition-of-richard-odwyer-26657.html
- 5 ↑ http://www.bbc.co.uk/news/uk-politics-16041824
- 6 ↑ http://www.guardian.co.uk/law/2012/jan/13/piracy-student-loses-us-extradition
- 7 ↑ Termed "mere-conduit" in the ruling, a term I feel less descriptive, perhaps
- 8 ↑ http://blogs.computerworlduk.com/open-enterprise/2012/01/two-fatal-flaws-in-the-odwyer-judgment/index.htm
- 9 ↑ http://www.out-law.com/page-12056
- 10 ↑ http://www.homeoffice.gov.uk/publications/police/operational-policing/extradition-review?view=Binary