Home Secretary approves extradition over authorisation of copyright infringement
The BBC is reporting that Richard O'Dwyer, the student who set up the TVShacks website, is to be extradited, after the Home Secretary signed the extradition order, following a court case.
I am entirely unconvinced that this is appropriate.
1. O'Dwyer did not appear to break UK copyright law, nor were his servers location in the US, but instead in Sweden.
2. Something I noticed on another site, in reference to this case: 'All domains ending in .net and .com are seizable by US law enforcement, regardless of where their owners are located'. That being said, according to the mags' judgement:
'However, the U.S.A. complains that “within one day” Richard O’Dwyer and co conspirators switched to a new identity “TVShack.cc” and carried on as before.'
I found it an odd line, 'complains' as it's not necessarily relative to the matter of his .net domain activities.
3. This point from the judgement seems to be missing in all the UK press I'm seeing on it: 'In summary, therefore, it is clear the U.S. Request identifies Richard O’Dwyer as operating, while physically in the U.K., but earning fairly substantial sums from persons in the U.S.A. from advertisements, websites enabling (exactly how is said to be crucial to this Request) films (movies) and T.V. programmes to be downloaded in breach of U.S. copyright law.'
So if we take that line, he earned money from the US, by breaking US copyright law. If anything, I'm surprised the US tax authorities aren't after him as well...
His UK-operate site, hosted in Sweden, was available to people in the US who, by virtue of visiting, generated revenue for him.
I wonder if the opposite is true - when someone in the US hosts material, permitted as fair use, which is available to someone in the UK where, without fair use, it is an infringement of copyright, the US would permit that person's extradition?
My knowledge of extradition law is very limited so this may be nonsense! I believe that countries will only extradite if conduct would be criminal under domestic law. On that basis, if conduct was lawful in the US there could be no extradition.
My knowledge is even more limited, but I wonder if there could be a difference between "could be criminal" and "has been prosecuted and found guilty" — I am not sure whether, here, the criminal offence of infringement under English law could be met?
It is perhaps particularly challenging in the case here, since I would have thought that the claimants would need to rely on "authorising" infringement (the extension of the act of infringement, per s16(2)), since the site merely linked to other works, I believe. I am not aware of a previous case making out the s105 offence based on authorisation, although, given the wording of the most likely (in my opinion) offence, s105(2): (2A)A person who infringes copyright in a work by communicating the work to the public— (a)in the course of a business, or (b)otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright, commits an offence if he knows or has reason to believe that, by doing so, he is infringing copyright in that work
perhaps it is possible, although there would need to be solid evidence that the rights of the copyright owner were prejudiced, and that he knew that he was infringing via authorisation.
I'm aware of two criminal prosecutions against the administrators of file sharing sites which failed although the charge was conspiracy to defraud rather than copyright infringement. (I was expert witness for the prosecution in one case and for the defence in the other - very even handed). There is the Newzbin case at civil law.
The basis for extradition to the US (and there are different arrangements with other countries) is that the Americans have to show reasonable suspicion that an offence has been committed. It is not a terribly high threshold. As Neil points out, there are criminal offences and it is feasible that a file sharing site (or the individuals behind it) could commit these.
I suspect the particular case has a way to run. As Heather said, there are difficulties in determining which state has jurisdiction. In the McKinnon case you could argue that there was direct impact on the US. I'm not sure here and there are perhaps similarities with the golf club captain who was extradited the other week charged with attempting to supply Iran with batteries for military use. Personally, I would extradite every pompous golf club captain in the country but it does seem to be an example of the US behaving as global policeman, prosecutor, judge and jury.
although the charge was conspiracy to defraud rather than copyright infringement
Do you recall why the charge was this, rather than under s105, on the basis of authorising?
it does seem to be an example of the US behaving as global policeman, prosecutor, judge and jury.
I can understand more the McKinnon case — although we have suitable laws to try him in this country, to my mind. I recall the Ansoll discussion, from a few years back, in which an English court held that it had jurisdiction to hear a case in England of a hacking attempt by a Russian company, with the attack launched from Russia, on the basis that the act took place in the UK as well as in Russia.
Here, as you say, it is perhaps more challenging, and even closer to the "what happens if your personal website is available in a country which has a law against non-government websites."
very even handed ... Personally, I would extradite every pompous golf club captain in the country
The prosecution was driven by the copyright industries - who were paying for everything. I understand the decision was to add weight to their oft stated line that copyright infringement is theft. The attempts failed fairly miserably and I have to say that I have precious little sympathy for them. Its impossible to know but in at least one case I suspect they might havegot a conviction under the copyright law.
Its straying off topic (at least for this module) but there is no doubt that in the McKinnon case there is no doubt that prosecution could have been brought in the UK for a breach of sections one and three of the Computer Misuse Act. The maximum penalty at the time was a sentence of (I think) 2 years imprisonment. It is now up to 10 years. It does seem that the penalties McKinnon might face in the US are very much greater. I do find it disturbing that the UK would extradite someone in those circumstances unless there was some assurance that any penalty would be in line with UK levels.
I find this case baffling on so many levels.
ReplyDelete1. O'Dwyer did not appear to break UK copyright law, nor were his servers location in the US, but instead in Sweden.
2. Something I noticed on another site, in reference to this case:
'All domains ending in .net and .com are seizable by US law enforcement, regardless of where their owners are located'. That being said, according to the mags' judgement:
http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/us-v-odwyer-ruling.pdf
'However, the U.S.A. complains that “within one day” Richard O’Dwyer and co conspirators switched to a new identity “TVShack.cc” and carried on as before.'
I found it an odd line, 'complains' as it's not necessarily relative to the matter of his .net domain activities.
3. This point from the judgement seems to be missing in all the UK press I'm seeing on it:
'In summary, therefore, it is clear the U.S. Request identifies Richard O’Dwyer as operating, while physically in the U.K., but earning fairly substantial sums from persons in the U.S.A. from advertisements, websites enabling (exactly how is said to be crucial to this Request) films (movies) and T.V. programmes to be downloaded in breach of U.S. copyright law.'
So if we take that line, he earned money from the US, by breaking US copyright law. If anything, I'm surprised the US tax authorities aren't after him as well...
His UK-operate site, hosted in Sweden, was available to people in the US who, by virtue of visiting, generated revenue for him.
ReplyDeleteI wonder if the opposite is true - when someone in the US hosts material, permitted as fair use, which is available to someone in the UK where, without fair use, it is an infringement of copyright, the US would permit that person's extradition?
My knowledge of extradition law is very limited so this may be nonsense! I believe that countries will only extradite if conduct would be criminal under domestic law. On that basis, if conduct was lawful in the US there could be no extradition.
ReplyDeleteMy knowledge is even more limited, but I wonder if there could be a difference between "could be criminal" and "has been prosecuted and found guilty" — I am not sure whether, here, the criminal offence of infringement under English law could be met?
ReplyDeleteIt is perhaps particularly challenging in the case here, since I would have thought that the claimants would need to rely on "authorising" infringement (the extension of the act of infringement, per s16(2)), since the site merely linked to other works, I believe. I am not aware of a previous case making out the s105 offence based on authorisation, although, given the wording of the most likely (in my opinion) offence, s105(2):
(2A)A person who infringes copyright in a work by communicating the work to the public—
(a)in the course of a business, or
(b)otherwise than in the course of a business to such an extent as to affect prejudicially the owner of the copyright,
commits an offence if he knows or has reason to believe that, by doing so, he is infringing copyright in that work
perhaps it is possible, although there would need to be solid evidence that the rights of the copyright owner were prejudiced, and that he knew that he was infringing via authorisation.
I'm aware of two criminal prosecutions against the administrators of file sharing sites which failed although the charge was conspiracy to defraud rather than copyright infringement. (I was expert witness for the prosecution in one case and for the defence in the other - very even handed). There is the Newzbin case at civil law.
ReplyDeleteThe basis for extradition to the US (and there are different arrangements with other countries) is that the Americans have to show reasonable suspicion that an offence has been committed. It is not a terribly high threshold. As Neil points out, there are criminal offences and it is feasible that a file sharing site (or the individuals behind it) could commit these.
I suspect the particular case has a way to run. As Heather said, there are difficulties in determining which state has jurisdiction. In the McKinnon case you could argue that there was direct impact on the US. I'm not sure here and there are perhaps similarities with the golf club captain who was extradited the other week charged with attempting to supply Iran with batteries for military use. Personally, I would extradite every pompous golf club captain in the country but it does seem to be an example of the US behaving as global policeman, prosecutor, judge and jury.
ReplyDeletealthough the charge was conspiracy to defraud rather than copyright infringement
Do you recall why the charge was this, rather than under s105, on the basis of authorising?
it does seem to be an example of the US behaving as global policeman, prosecutor, judge and jury.
I can understand more the McKinnon case — although we have suitable laws to try him in this country, to my mind. I recall the Ansoll discussion, from a few years back, in which an English court held that it had jurisdiction to hear a case in England of a hacking attempt by a Russian company, with the attack launched from Russia, on the basis that the act took place in the UK as well as in Russia.
Here, as you say, it is perhaps more challenging, and even closer to the "what happens if your personal website is available in a country which has a law against non-government websites."
very even handed ... Personally, I would extradite every pompous golf club captain in the country
Even handed indeed! :)
The prosecution was driven by the copyright industries - who were paying for everything. I understand the decision was to add weight to their oft stated line that copyright infringement is theft. The attempts failed fairly miserably and I have to say that I have precious little sympathy for them. Its impossible to know but in at least one case I suspect they might havegot a conviction under the copyright law.
ReplyDeleteIts straying off topic (at least for this module) but there is no doubt that in the McKinnon case there is no doubt that prosecution could have been brought in the UK for a breach of sections one and three of the Computer Misuse Act. The maximum penalty at the time was a sentence of (I think) 2 years imprisonment. It is now up to 10 years. It does seem that the penalties McKinnon might face in the US are very much greater. I do find it disturbing that the UK would extradite someone in those circumstances unless there was some assurance that any penalty would be in line with UK levels.
Hmmm... an interesting subject for some further research indeed. Extradition in the digital age.
ReplyDelete