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Wednesday, 14 March 2012

KAT UPDATE: Home Secretary approves TVShack creator's extradition

This Kat has been closely following the extradition proceedings involving university student Richard O'Dwyer. As many readers are by now aware, Mr O'Dwyer hosted the website TVShack.net, which provided links to unauthorised copies of films and TV shows which visitors could then chose to download. On 23 May 2011 he was arrested (and later released on bail), having been accused of conspiracy to commit copyright infringement and of criminal copyright infringement by the US Government. On 13 January 2012 District Judge Purdy, sitting in the Westminster Magistrates Court, rejected all challenges made by Mr O'Dwyer to prevent his extradition to the US. The matter was then sent the matter to the Home Secretary Theresa May for her consideration. See Katposts here and here.


On Monday 12 March 2012, Mrs May approved Mr O'Dwyer's extradition. According to many media outlets (eg here and here), a Home Office spokesman stated that Mrs May had 'carefully considered all relevant matters' before signing the order. Unfortunately, this Kat could not see any official statement on the Home Office website. Mr O'Dwyer has 14 days from the date of notification to appeal to the High Court (ie Monday 26 March 2012).

Not surprisingly, Mr O'Dwyer's mother, Julie, was rather outspoken about Mrs May's decision. She is reported to have said:
'Today, yet another British citizen is being sold down the river by the British government. Richard's life – his studies, work opportunities, financial security – is being disrupted, for who knows how long, because the UK government has not introduced the much-needed changes to extradition law.

The US is coming for the young, the old [ie Christopher Tappin, a 65 year old British businessman who was accused of arms dealing] and the ill [ie Gary McKinnon, the alleged hacker of computer systems at the Pentagon, who has been diagnosed with Asperger's syndrome], and our government is paving the way. By rights it should make for an interesting conversation between the Obamas and Camerons aboard Air Force One – but I'm not holding my breath. If Richard appears to have committed a crime in this country, then try him in this country'.
Merpel is ashamed to confess that she hasn't a clue about extradition law and she hasn't seen the extradition treaty which seems to have created a one-way flow of traffic across the Atlantic. She wonders, though, how far it applies. For example, US patent law has provisions such as these:
35 U.S.C. 33 Unauthorized representation as practitioner.

Whoever, not being recognized to practice before the Patent and Trademark Office, holds himself out or permits himself to be held out as so recognized, or as being qualified to prepare or prosecute applications for patent, shall be fined not more than $1,000 for each offense.
and
"35 U.S.C. 292 False marking.

(a) Whoever, without the consent of the patentee, marks upon, or affixes to, or uses in advertising in connection with anything made, used, offered for sale, or sold by such person within the United States, or imported by the person into the United States, the name or any imitation of the name of the patentee, the patent number, or the words “patent,” “patentee,” or
the like, with the intent of counterfeiting or imitating the mark of the patentee, or of deceiving the public and inducing them to believe that the thing was made, offered for sale, sold, or imported into the United States by or with the consent of the patentee; or

Whoever marks upon, or affixes to, or uses in advertising in connection with any unpatented article the word “patent” or any word or number importing the same is patented, for the purpose of deceiving the public; or

Whoever marks upon, or affixes to, or uses in advertising in connection with any article the words “patent applied for,” “patent pending,” or any word importing that an application for patent has been made, when no application for patent has been made, or if made, is not pending, for the purpose of deceiving the public —

Shall be fined not more than $500 for every such offense. ..."
These are offences which could quite easily be committed by people based in the United Kingdom, wittingly or unwittingly. Might these offences too lead to extradition?  Or is it only offences for which custodial sentences exist? Does anyone know?

The IPKat wonders who pays for the flight to the United States (and the flight back, assuming there is one) -- and if you fly on Virgin do you get to keep the goody-bag?

9 comments:

Anonymous said...

The fact that a crime can be committed "unwittingly" is neither hear nor there.

The accused profited by almost £150,000 from illegal activity. Was that unwitting?

Perhaps he created the site in his sleep, and can plead diminished responsibility.

Corduroy said...

The Embassy of the United States (yes, yes they may have a view to push on this) has a Fact Sheet on what it calls, using a strangely inconsistent style sheet, the "U.S. - UK Extradition Treaty":

http://london.usembassy.gov/gb140.html

This sates: “The treaty is a “dual criminality” treaty. No one can be extradited by either country unless the offense for which extradition is requested is a crime in both countries and carries a prison sentence of at least one year." and

"The United States has not denied a single extradition request from the UK under the treaty. While the U.S. does send more extradition requests to the UK than it receives, this difference is largely due to the differences in the size of the respective populations. The panel report notes that the U.S. has a population about five times the size of the UK, but there have been fewer than twice the number of people extradited to the U.S. than to the UK. The number of U.S. requests is not disproportionate."

However, it fails to address the goody-bag issue.

Anonymous said...

'Anonymous': Perhaps he created it believing as do many lawyers, and the only UK juries to hear such a case, that there was no crime involved? And that being a Brit never having been to or operated in the US there was no proper basis for US charges?

Or perhaps he knew the UK government was spinelessly sycophantic to the US and he didnt care.

Anonymous said...

Surely there is a lack of logic in the US Embassy Fact Sheet. If the US is 5 times the size of the UK, one would expect the number of US citizens inadvertently breaking UK laws to be 5 times the number of UK citizens inadvertently breaking US laws. So then, on a statistical basis, one would expect the number of requests for extradition to the UK to be 5 times the number of requests for extradition to the US.

The fact that the number of extraditions to the US is "fewer than twice" (say 1.5 times?) the number of extraditions to the UK, when one would expect it to be 0.2 times, does suggest the number of US requests is indeed disproportionate.

Corduroy said...

Yes, their argument does appear to allow for many many more people to be extradited under similar treaties from, say, Vatican City than China without them viewing the numbers as disproportionate. Which is odd.

Anonymous said...

This is shameful on the part of the UK legal and political system to date.

This at most a civil matter and there may not even be any civil liability. Linking is not infringing,

It's absurd to be treat this as criminal. And to hand a young man over to the US "justice" system?

Hopefully the Supreme Court will make a strong statement.

Anonymous said...

This is the first time I hear of a souvereign nation extradites its own citicens (or subjects, if you prefer) to another nation.

I remember a case perhaps 10 years ago where another European fled to the UK from his country and where UK authorities made extraditions complicated and even wanted to dictate how the prosecution should be handled in his own country.

Bizarre.

Keith Loven said...

One could just about see an argument in favour of extradition for crimes that threaten the safety or security of the people of another country, but for copyright issues? Surely this is not right? If no offence has been committed in the UK by someone resident here who has never visited the USA, I cannot see the justification for hauling them off in chains to the USA, to be treated like a dangerous criminal. Of course, the same is true for someone in the USA who might be extradited to the UK.

This Treaty is ill thought out.

Anonymous said...

This morning I travelled at 70mph down a UK motorway on my way to work. I believe this may be breaking the speed limit in many US states. Am I at risk of being extradited for breaking US laws?

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