US Government Seeks Extradition of UK Student For File-Sharing 409
Gimble writes "The BBC reports that UK student Richard O'Dwyer has lost a legal battle to block his extradition to the U.S., where he faces copyright infringement charges for running a file sharing site (ruling). O'Dwyer operated the site 'TV-Shack' from 2007 until 2010, which didn't offer any files itself, but posted links to streams and files hosted elsewhere. O'Dwyer was first arrested in June last year by British police acting on information from U.S. Immigration and Customs Enforcement. The domestic investigation was subsequently dropped, but Mr. O'Dwyer was re-arrested in May on an extradition warrant to face charges in America."
Re:Well. this will be a first... (Score:5, Informative)
There's a wider issue here because of the hugely lopsided extradition treaty that was signed by Blair and which has been lambasted by most human rights organisations. There has been no need to *prove* anything to get the extradition beyond the fact the USA justice wants him there. For some strange reason the same favour wasn't granted to us in our extradition of American citizens who still have their full legal protections. The same treaty has meant one man has been held without trial for more than 7 years despite having committed no offence in the UK...(although his views were abhorrent they weren't illegal, something the USA used to understand)
Re:Is this even a crime in the USA? (Score:5, Informative)
It's only happened once in the UK before as well, and then (TV-Links), the case was dismissed. Despite the web being around for some time now, it seems that the issue of linking is only just reaching courts, and unsurprisingly, there will be a few odd rulings until it settles down and precedent is established.
In this case, the US was arguing that providing the website (even merely linking to stuff) was "communicating [copyrighted stuff] to the public", and was "in the course of a business" due to the money being made from adverts (contrary to Section 107 (2A) [legislation.gov.uk] of the CDPA). The counter-argument was that (as in the TV-Links case) his actions were protected by the 'mere conduit' defence (established by Article 12 of the Electronic Commerce Directive [europa.eu]) which protects ISPs, website hosts etc. from the actions of their users. However, in this ruling, the judge seems to have found that because O'Dwyr (the defendant) was in control of the site, and those adding the links had to be "vetted". Imho (as a mere observer, not a lawyer) that's a very narrow interpretation of the Directive, which might be grounds for a successful appeal.
If he does appeal, we might get a "definitive" ruling on the legality of linking, and the scope of the EC Directive defences, which could be very useful (or terrifying, if they go the other way), so in some ways this is a good thing.
Of course, if he gets to the US, he then may face a completely different trial under US law, where he will be able to argue facts, not just points of law...
Re:Well. this will be a first... (Score:5, Informative)
I don't usually reply to my own comments, but I realized I got distracted and forgot to present my argument. Here it is:
The extradition arrangement is not reciprocal.
Re:How is this legal? (Score:5, Informative)
Because the U.K signed a very bad and very lopsided agreement with the U.S, The Extradition Act of 2003 witch implements the US-UK Extradition Treaty of the same years. It was controversial for exactly this, it allows the U.S extradite U.K citizens for infractions of U.S law even when that offense occurred outside the U.S with no ability for U.K to do the same to citizens. What's worse the standard of proof in extradition cases under this act is reasonable suspicion.
Re:Except this isn't an extraditable offence. (Score:5, Informative)
That seems pretty sensible. The guy was making large sums of money by running a site that very clearly was designed for piracy. He wasn't some innocent middleman who was abused. He profited handsomely off piracy knowing full well copyright infringement was illegal, and is now being extradited for it.
I'm a Brit and think there are quite a few things wrong with the US/UK extradition treaties that are in place, but the judges ruling is easy to read and logically sound. What he did was an offence under UK law. It would not infringe his human rights to be tried abroad. So what's the big deal? My only concern with this is that the UK Govt didn't prosecute him itself.
Do something about this (Score:5, Informative)
To all my fellow UK /.ers, you can write to the Home Secretary about this matter, explaining politely why this is wrong:
Rt Hon Theresa May MP
Home Secretary
2 Marsham Street
London
SW1P 4DF
public.enquiries@homeoffice.gsi.gov.uk
Telephone number: 020 7035 4848
He broke the law IN THE UK! (Score:4, Informative)
According to the very well written judgement [judiciary.gov.uk] he can only be extradited if there is a proportional offence in the UK.
I think this stinks, but it seems perfectly legal.
Re:Just heard this reported on BBC Radio 4 (Score:4, Informative)
The item stated that in order for extradition to be considered, O'Dwyer had to have been accused of committing a crime that was illegal in both the UK and the USA. As far as I am aware, no crime was committed in the UK, which is why the criminal investigation was originally dropped.
This was one of the main challenges to the extradition (section 7 in the ruling, iirc) - the judge disagreed, and held that what he did probably was illegal in the UK. However, that may prove to be a good point to appeal on.
Re:How is this legal? (Score:5, Informative)
WTF happened to the concept of jurisdiction? Why should the US be able to enforce its laws in the UK? This sets a VERY bad precedent; what if country A has some really stupid law that country B doesn't, and someone in country B breaks it? Should they be extradited to country A?
In German law, you would be extradited to the USA if: 1. You did something that would be a crime according to German law. 2. The crime was committed in the USA, and according to German law a crime is committed at the place where it has an effect (like sending a letter bomb from Germany that explodes in New York would be a crime committed in the USA). 3. There must be enough evidence that according to a German prosecutor, it would go to court if it happened in Germany. Not enough evidence to convict, but enough to prosecute. 4. There must be a guarantee of a fair trial, and no cruel or unusual punishment. That means in case of murder, the court would have to guarantee that there is no death penalty. For small offences, the trauma of being extradited and having to stand trial in a foreign country could already be considered too much punishment.
There must also be a guarantee that you cannot be prosecuted for anything other than the things that you were extradited for. Which means police often delays asking for an extradition of you are suspected of having committed multiple crimes unless they have enough evidence for each crime.
Re:This was a Magistrates' Court (Score:5, Informative)
It's worth keeping in mind that this decision was made in a Magistrates' Court. That is basically the lowest court in England... It sounds like this wasn't a typical case for such a court, but the implication is still that this is only the first step down a long road. I imagine there are several rounds of appeals to go through before the guy in question is in any danger of actually leaving British soil.
Extradition cases in England are always heard, by convention, in Westminster Magistrates' Court; they're in a Magistrates' Court because it's the appropriate level court, and in Westminster because that one has 'jurisdiction' over the government etc., so on that count, this is a typical case for the court, although it will rarely have to deal with copyright issues. However, you're right in that this will likely end up going through a few more courts before anything substantial happens.
And the Pirate Party says... (Score:5, Informative)
By supporting the baseless US extradition case against Richard O'Dwyer today at Westminster Magistrates Court the judge Judge Quentin Purdy has failed to inject the much needed shot of rationality into the insanity of the UK-US extradition arrangements we had all hoped for. The Sheffield student is accused of infringing copyright by setting up the popular UK-based website TV Shack.
TV shack provided a catalogue of links to other sites, with no illegal material available from it at any time. As the server was based in the UK, Richard's lawyer has pointed out that there is simply no valid reason to send a young British citizen to face a court in the US.
[...]
This outcome is a failure on the part of our British justice system to act in a sensible and reasonable way. This case is the perfect example of what enforcing copyright is; excessive, overblown and aimed at easy targets innocent or not whilst ignoring the human.
So, this is what protecting your copyright has come to mean. Accepting unacceptable human collateral like Richard O'Dwyer."
http://www.reddit.com/r/unitedkingdom/comments/ofabu/tv_shack_creators_extradition_hearing_is/
Re:that will tieup the courts and jury trials (Score:5, Informative)
Frankly the law in the UK is irrelevant. If he's broken it he should be charged and given a fair trial.
If he hasn't broken it then he shouldn't be persecuted.
I continue to completely fail to understand why the UK government thinks that operating a website from the UK, hosted in the UK, run by someone in the UK should come under US law and be a cause for extradition.
Ignorance of the law is no defence, but apparently this now extends to ignorance of the law of 217 countries.
It's utterly out of fucking order and sadly when I wrote to my MP he completely failed to get the point and replied with a comment on the fairness of the extradition treaty, and not the jurisdiction of the law alleged to have been transgressed. I'd write to him again but frankly he's a cunt. Yes Ken Clarke, I mean you. You're a cunt.
Re:that will tieup the courts and jury trials (Score:4, Informative)
Actually, the US backed out of their side of the deal. Now UK has extradition obligations to the US, but none the other way around.
Re:Is this even a crime in the USA? (Score:4, Informative)
That's s107 (2), which isn't in play here, but yes, "article" in that context hasn't been defined , which is why prosecutors in the UK have been able to use s107(1)(e) to go after non-commercial file-sharers before (despite s107(2A)(b) being added specifically for that purpose), claiming that an .mp3 file etc. is an "article". I don't have access to all my legalish resources at the moment, but I imagine that "article" in this context merely means "thing" - but I don't think s107(2) has ever been used against software specifically.
However, the CDPA is rather badly-written in some places and a real mess - much of it being written on behalf of the legacy publishers in the 80s, so it doesn't really know about computer stuff, and the rest has been cobbled together following subsequent lobbying and EU legislation. The UK really could do with a new Copyright Act, but hopefully we're currently at the high point in the scope of copyright, so it might be worth struggling on for a few more years until copyright law is a bit more reasonable.
Re:Well. this will be a first... (Score:4, Informative)
See section 5
O Canada! (Score:4, Informative)
Not to brag about sanity, but up here in Canada we just had a court decision in the last year about the legality of suing someone for linking something.
The short version is that its not.
It might be going to appeal, but currently sanity is holding out against the powers of stupid.