Free flight to the US? It's dire for O'Dwyer

This Kat has been waiting for months in anticipation for the ruling in the extradition proceedings involving Richard O'Dwyer. As readers of this weblog may recall, 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 (see previous Kat post here). Mr O'Dwyer, arrested on 23 May 2011, was accused of conspiracy to commit copyright infringement and of criminal copyright infringement. He was later released on conditional bail.

The matter came before District Judge Purdy sitting in Westminster Magistrates Court in November 2011 and Judge Purdy made his ruling on Friday 13 January 2012. The decision is available here.

In its complaint, the US Government undertook a thorough analysis of Mr O'Dwyer's activities. At the outset, it alleged that Mr O'Dwyer 'owned and operated a linking website that offered to the public free downloading and/or streaming of thousands of copyrighted movies and television programs, without authorisation from the copyright holders. The original website was named TVShack.net.' As an example of the operation of TVShack.net, the complaint further provided:

'on June 15, 2010, at approximately 1.37 pm, TVShack.net’s homepage listed seven movies as the “Most Popular Movies Today”, all of which were available for downloading or streaming through TVShack.net. Each of them had been viewed thousands or tens of thousands of times by individuals throughout the world, including the United States. As of that date, all seven movies were playing in the theatres, all were copyrighted, and the copyright holders had not authorised the movies for third party distribution over the Internet by TVShack.net or any other website'.

The US Government also made reference to the following sections of TVShack.net:

* 'Site News and Announcements' postings dated 19 April 2010, 4 May 2010 and 7 May 2010, announced that TVShack.net supported links from popular websites which allegedly store illegal copies of movies and TV programs for later downloading or streaming, including DivxDen.com, NovaMov.com and VideoWeed.com.

* 'How to Add a Link to TVShack' under 'Site Help Rules' instructed users on how to add links to additional movies and TV programs. It specifically instructed that 'only full movies and full TV episodes are accepted'.

* 'Frequently Asked Questions' reminded its users about the amount of money that they were saving by viewing the movies and television programs via the TVShack.net website: 'you’re saving quite a lot of money (especially when putting several visits to the theatre or seasons together)'

To give a better understanding of the scale of Mr O'Dwyer's enterprise, the US Government alleged that he received over $230,000 (c £146,000) in payments from advertising and that, according to Alexa.com, 'on or about June 28, 2010, TVShack.net was the 1,779th most popular website in the world and the 1,419th in the United States'.

Mr O'Dwyer denied these allegations. In a witness statement he asserted: 'I am not guilty of these charges. I have not downloaded films, documentaries or programmes onto my server'. He maintained that TVShack 'worked exactly like the Google search engine… (it)…. directed users through the use of searches to websites… at no point was there any infringing material, such as movies or programmes on my server. It just directed users to other websites by providing the link'.

At the hearing before Judge Purdy, counsel for Mr O’Dwyer pursued three identified challenges to an order for extradition:

1. the complaints do not meet the dual criminality requirement of the conduct being, if committed in this jurisdiction, an offence(s) here as well as in the US;

2. it would be “unjust or oppressive” by virtue of the passage of time from the alleged offences to extradite for trial; and,

3. it would be disproportionate to order extradition and thus breach Mr O'Dwyer's Article 8 right in the European Convention on Human Rights (family life).

Dual Criminality: for this Kat, this was arguably the most intriguing aspect of the case. Counsel for the US Government argued that the substantive offence committed by Mr O'Dwyer was contained in s. 107(2A) of the Copyright Designs and Patents Act 1988::

'A person who infringes copyright in a work by communicating the work in public
(a) in the course of business, or
(b) otherwise than in the course of business but 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'.

Counsel for Mr O'Dwyer sought to refute this by relying on 'mere conduit' exception as set out in Regulation 17 of the Electronic Commerce (EC Directive) Regulations 2002 and applied at first instance in the Gloucester Crown Court in R v Rock & Overton (2010) (the TV Links case, noted by TorrentFreak here). Counsel also submitted that Mr O'Dwyer did not 'make available' copyright material that came from remote websites.

Counsel for the US Government went very close to arguing that TV Links was wrongly decided. In any event, Counsel sought to distinguish Mr O'Dwyer's behaviour from the restrictive decision in TVLinks. First the 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, unlike TVLinks, there was no attempt to protect copyright, as Mr O'Dwyer knew materials were subject to copyright and actively taunted already-cited efforts in June 2010 to seize TVShack.net.

In a short conclusion, Judge Purdy found in favour of the US Government. He stated:

'To my mind there is much in the distinction factually, always remembering these matters are allegations of conduct which a trial court alone can resolve – that Mr Jones contends between the instant matter and Rock & Overton. I also have in mind the mischief Parliament had in mind. Accordingly in my judgement I am satisfied the conduct alleged in the instant request meets the dual criminality test and would be an offence in this jurisdiction'.

Passage of Time:  On this challenge, Counsel for Mr O'Dwyer claimed that that the proceedings were 'oppressive' due to 'the tactical delay' by the US prosecutors and the inevitable disruption to Mr O'Dwyer's university education if extradited.

Judge Purdy rejected this challenge, stating that he could 'find no tenable basis for holding a fair trial, with all appropriate trial safeguards, cannot take place in the instant case'. Although the prospect of a serious criminal trial abroad is 'obviously alarming' and 'daunting', Judge Purdy added that 'enforcement of cross-border criminal justice is intended, in part at least, to ensure (alleged) victims of crime and the wider public confidence in criminal justice is no thwarted by national borders'.

Article 8 (family life): Reliance was placed by Counsel for Mr O'Dwyer on observations on Article 8 in Bermingham & others v USA [2006] EWHC 200 (Admin) where Laws LJ stated (at [121]) that:

'I do not accept (the US) submission that the possibility of trial in the United Kingdom is legally irrelevant. There might be an instance in which such a possibility could tip the balance of judgement in favour of a conclusion that a Defendant’s extradition would amount to a disproportionate interference with his Article 8 rights.'

Such a finding would not lead to a UK trial but a discharge because Article 8 is breached. Judge Purdy respectfully endorsed the 'very powerful observations' of Lord Phillips, President of the Supreme Court, in Norris v USA [2010] UKSC 9, who disapproved of general considerations but accepted the exceptional circumstances in which Article 8 would lead to a discharge of an otherwise perfectly proper extradition request. His Lordship stated at (at [67]):

'His Lordship said “extradition proceedings should not become the occasion for a debate about the most convenient forum for criminal proceedings … Unless the judge reaches the conclusion that the scales are finely balanced he should not enter into any enquiry as to the possibility of prosecution in this country.'

Judge Purdy rejected Mr O'Dwyer's challenge on this ground: Mr O'Dywer's conduct 'does not demand a trial here if the competent UK authorities decline to act and does, in my judgement, permit one in the USA'.

Judge Purdy's conclusion: Accordingly, Judge Purdy rejected all challenges made on behalf of Mr O'Dwyer to prevent his extradition to the US. He then sent the matter to the Secretary of State (for her consideration of the statutory criteria). He noted that Mr O’Dwyer has the right to pursue an appeal to the High Court but cannot be heard until after the Secretary of State has confirmed an order for extradition.

Reactions: In response, Mr O'Dwyer's mother is quoted in the Telegraph as saying that she was 'very disappointed, in fact disgusted' with the verdict. She also expressed disappointment towards the government 'for signing us up to this treaty which has opened the flood gates to America to come and seize British citizens without even having set foot outside of this country.'

Speaking outside court, Mr O'Dwyer is also quoted in the Telegraph as having 'faith in the High Court in making the right decision' and (perhaps unhelpfully) adding that he did not regret starting the website because it had 'helped him no end' with his studies.

This Kat was looking forward to a more rigorous discussion of the meaning of 'communicating the work in public' in s 107(2A). She notes that the Copyright and Trade Mark Enforcement Notebook for Trading Standards Officers prepared by the Federation Against Copyright Theft (FACT, whose self-stated 'primary purpose is to protect the United Kingdom’s film and broadcasting industry'), available here on the UK Intellectual Property Office (IPO), website states (at 8) that:

The offence in s107(2A) is now available as a tool to trading standards officers to prosecute uploading file sharers of digital product, such as film and music, whether or not they do so in the course of a business.

As such, this understanding from an organisation which is in favour of IP owners is that s. 107(2A) would not cover the encouragement of others to download film and TV program files from third party websites.

The IPKat asks the $64,000 question: what is your understanding of 'communicating the work in public' in the context of s 107(2A)?

Merpel, despite receiving some flack last time for her quaint, old-fashioned preferences, is adamant that she would rather buy the DVD boxed sets of Melrose Place (and now The Good Wife) rather than mess about with all this linking, streaming and downloading malarky ...