For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

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Thursday, 23 June 2011

UK university student wanted -- by the US authorities

This Kat is speechless, both from the anonymous person in Waitrose who gave her a throat lurgie and from the attempts by the US Immigration and Customs Enforcement (ICE) to extradite a UK university student for hosting a website which provided links for visitors to download unauthorised copyright material on other sites.

Richard O'Dwyer is a 23 year old undergraduate student at Sheffield Hallam University. He hosted the websites TVShack.net and TVShack.cc which provided links unauthorised copies of films and TV shows which visitors could then chose to download. In late May 2011, he was arrested and accused of conspiracy to commit copyright infringement and criminal infringement of copyright by ICE. The websites have since been taken down and contain the ominous notice that the domain names have been seized by ICE in accordance with the seizure warrant obtained from the US Attorney Office for the Southern District of New York.

Put at its simplest, these offences were allegedly committed by a UK resident, via a website which was created in the UK and hosted in the UK. Accordingly, is there any reason for the case to be determined in the US?

On the face of it, this Mr O'Dwyer's case sounds very similar to that involving TV-Links in the Crown Court in early 2010. The website www.tv-links.co.uk linked to videos hosted on sites like YouTube and itself carried absolutely zero illicit content. His Honour Judge Ticehurst found that TV-links was a mere conduit within Regulation 17 of the The Electronic Commerce (EC Directive) Regulations 2002. Accordingly, TV-Links were not be liable for damages, for any other pecuniary remedy or for any criminal sanction as a result of transmission in a communication network. His Honour also rejected claims that TV-Links had breached section 20 of the Copyright Designs and Patents Act 1988 by making infringing material available to the public.


Although the TV-links case was determined in the Crown Court and did not establish a binding precedent, it is useful for it demonstrates that an argument along these lines could succeed in a higher UK court. Indeed this conclusion makes sense, for most linking makes it easier to locate works which are already available to the public. The result is also consistent with other jurisdictions, such as Australia, where the Federal Court in Universal Music Australia v Cooper (2005) held that a link to files which contained copyright infringing material was not 'making available' (however at first instance and on appeal to the Full Federal Court it was held that Mr Cooper had 'authorised' infringement: see Cooper v Universal Music Australia Pty Ltd (2006)).

It is perhaps for this reason that ICE are attempting to take Mr O'Dwyer's case to the US. However, in doing so, ICE are arguably setting off another jurisdictional time bomb. The extradition disaster involving Gary McKinnon comes to mind. For those unfamiliar with those proceedings, Mr McKinnon was a computer hacker with Asperger syndrome who has been accused of hacking into networks owned by NASA, the US Army, US Navy, Department of Defense, and the US Air Force. A significant difference between the two cases is that Mr McKinnon's case involved accessing computers in the US, whereas Mr O'Dwyer's actions were wholly in the UK. Mr McKinnon claims that he was looking for evidence of UFO cover ups. Mr McKinnon has been fighting the extradition charges for over nine years and has had his case heard by the House of Lords in 2008, the European Court of Human Rights in 2008 and even in a discussion between David Cameron and Barack Obama during the latter's visit to England in 2010.

Against this backdrop, it is timely that today the Joint Committee on Human Rights (comprised of MPs and peers from all three major parties) recommended the government to reconsider its heavily-criticised Extradition Act 2003 which implements treaties with the US and EU so that Britons were not sent overseas for trial over alleged offences committed wholly or mainly inside the UK or without any evidence being offered against them. Only time will tell if the government will implement any of these proposals.

The IPKat asks the inevitable question: should Mr O'Dwyer stay or should he go?

Merpel says that she would prefer to purchase the DVD box sets of Melrose Place rather than fool around with all this linking and downloading malarky ...

9 comments:

Andrew Robinson said...

Mr O'Dwyer's case sounds very similar to that of Alan Ellis (The 'OiNK' trial). Mr Ellis ran a site that did exactly what Mr O'Dwyer is accused of, and he was found innocent by a UK court.

It would be natural to assume that US ICE want this case tried on American soil, because the precedents set by the OiNK trial mean it would fail if it was tried here.

If this is the case, then we have the very worrying case of a UK citizen, doing something in the UK that is legal in the UK, being extradited for contravening the laws of a foreign country.

There is also the issue of selective enforcement to consider. Google, Yahoo, and all the other major American search engines also "provided links for visitors to download unauthorised copyright material on other sites", but US ICE have conspicuously failed to put them on trial.

Anonymous said...

I can't avoid thinking that by "protecting" IP (or their understanding of it) in this heavy-handed manner, without consideration to the sensibilities or constitutional niceties of other countries, these US agencies will ultimately unleash a backlash with the exact opposite result of what they are purported to aim.

But then, we are talking about the country that launched both the "War On Drugs" and the "War On Terror", and aren't those two going well...

TJ said...

In this context it's not necessarily the case that the linking merely "makes it easier to locate works which are already available to the public". Pirated TV shows are sometimes hosted on private sections of data archiving websites, and are only accessible to those knowing the URL. If Mr O'Dwyer's website had any of these links, then it arguably would have been making the content available to the public.

In hindsight, Mr O'Dwyer should have configured his servers to block access from US IP addresses. I.e. just as sites like http://www.pandora.com/ do to UK visitors.

Anonymous said...

Surely the US is involved because many (perhaps most?) of the works that were made available on TVShack are US works protected by US copyright? And if they were also 'made available' and accessible in the US, meaning US citizens were downloading these illegal works (thereby committing the illegal act of copyright infringement), then the USA has an interest in preventing these activities taking place. Richard O'Dwyer had already been warned by the US authorities to stop his copyright infringements, when they seized the website TVShack.net, but O'Dwyer merely changed the top level domain to .cc.

The difference between TVShack and Youtube is that TVShack is used to provide MOSTLY copyright-infringing (if not 100% copyright infringing) works and encourages its users to upload illegal works; whereas, youtube contains a vast mixture of infringing and non-infringing works, and operates a strict 'take down' procedure which ensures that upon complaint from a copyright owner, the works are taken down. However, I do agree that there is a fine line between the youtube's and a TVshack's of this world.

As for the OiNK trial, Mr Ellis escaped conviction because he was charged with 'conspiracy to defraud' rather than copyright offences. His co-defendants were all charged and convicted of copyright offences (they received community sentences).

Anonymous said...

Surely the US is involved because many (perhaps most?) of the works that were made available on TVShack are US works protected by US copyright?

In the US. In the UK they'll be protected by British copyright laws, which aren't necessarily identical to US laws.

And if they were also 'made available' and accessible in the US, meaning US citizens were downloading these illegal works (thereby committing the illegal act of copyright infringement), then the USA has an interest in preventing these activities taking place.

I'm also certain that the People's Republic of China may also have "an interest" in preventing that Chinese citizens download certain works that are illegal in China. I nevertheless don't believe that the US is going to extradite a US citizen to China for making available such "illegal works" in China through the Internet. And a good thing it is.

Sovereignity. It works both ways.

Anonymous said...

But then what if Sony USA owns the copyright (and other rights) to a track that is uploaded by a US citizen onto TVShack, and that track is downloaded by a US citizen onto a computer in the US. Even though the server via which the track is transmitted may be in the UK, there is still a link to the USA and a reason for them to have an involvement.

I'm not saying that it's right that O'Dwyer be extradited to the USA, but I do see the reason why, legally-speaking it can be justified.

Anonymous said...

"Pirated TV shows are sometimes hosted on private sections of data archiving websites, and are only accessible to those knowing the URL. If Mr O'Dwyer's website had any of these links, then it arguably would have been making the content available to the public."

Not sure I follow this logic - that a link is little known does not make it unaccessible. He didn't host or copy any content - the people who reproduced the material (or downloaded it after clicking the links did that).

Seems like a very odd state of affairs that a British citizen can be extradited for simply providing links on a website. I wonder, would the US authorities be so accomodating ?

Anonymous said...

But then what if Sony USA owns the copyright (and other rights) to a track that is uploaded by a US citizen onto TVShack, and that track is downloaded by a US citizen onto a computer in the US. Even though the server via which the track is transmitted may be in the UK, there is still a link to the USA and a reason for them to have an involvement.

What if a Syrian citizen uploads a video of the ongoing repression onto a US server, and that is downloaded by another Syrian citizen onto a computer in Syria? Will the US extradite to Syria those running the server?

This may be an extreme example, but the principle is the same. Laws governing copyright differ across countries. The US has some of the most stringent laws, longest copyright terms, etc. (it wasn't always so...) Other countries may not share the same provisions, and it is altogether possible that some acts that are deemed illegal in the US aren't illegal elsewhere (in the simplest case, the copyright term may have expired abroad, but not in the US). More often than not, the decision not to follow the US' lead in this matter will have been a conscious one, after intense legislative and public debate. Enforcing US law abroad, even where the same acts are actually legal, would seriously undermine those other countries' democratic systems, and even the Rule of Law itself.

TJ said...

@Anonymous 3:36:00

"that a link is little known does not make it unaccessible"

You omit the key phrase "...to the public".

If a small group of individuals know a URL that is sufficiently complex that it cannot reasonably be guessed, that should not constitute a PUBLIC disclosure of the material located at that URL.

The first person to publish the URL would then be making the material available to the public.

I have no idea whether this is something Mr O'Dwyer did, but it is not uncommon.

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