What shall we do with Richard O'Dwyer? This Kat has not had the opportunity to discuss with the other Kats the whys and wherefores of the case of Richard O'Dwyer, who is facing extradition to the United States and a possible 10-year prison sentence for committing acts in the United Kingdom that are not, so far as he can tell, criminal in the United Kingdom itself but which may transgress the criminal provisions of US copyright law. It is also well known that this Kat does not condone intellectual property infringement, in whatever shape or form it finds itself. For all that, he feels that not only fictional felines but real humans are entitled to enjoy an expectation that an act which they perform in their own country, where it attracts no criminal sanction, is not an act for which they will be extradited to an alien jurisdiction and made to face criminal charges there. Wikipedia founder Jimmy Wales has launched
this petition to the British Home Secretary Theresa May to refuse the extradition request. To date it has attracted fewer than 30,000 signatures, but this Kat has now added his own.
What shall we do with Ian Hargreaves? This Kat is no great enthusiast of
Digital Opportunity, the so-called Hargreaves Review of intellectual property and growth in the United Kingdom which he -- along with a comfortingly large number of others -- considers to have been ill-conceived, poorly focused, hastily executed and, he suspects, largely destined for oblivion. He is however more than happy to salute its eponymous chair,
Professor Ian Hargreaves, Professor of Digital Economy at Cardiff University, Wales, who has just received the honour of a CBE in the Queen's Birthday Honours List. Ian's efforts have led to a sharp increase of awareness of the prospects and the problems facing not only IP owners but their competitors and their customers and have provided a valuable agenda for debate across many areas of IP. Well done, Ian!
What shall we do with Kingsley Egbuonu? The 54th and final episode in Kingsley Egbuonu's A to Z tour of official African IP websites for the Afro-IP blog ends on a low note with a report on Zimbabwe --a country that plays host to the African Regional Intellectual Property Organization (ARIPO) but manifestly has failed to get its own act together. This Kat is impressed at the dedication and enthusiasm with which Kingsley has flung himself at this task and hopes that he will find something suitably huge for his next challenge. Can readers find him one?
What shall we do with Natalie Westerman? 22-year-old Natalie, who tweets as @natwest, has been beset by angry and frustrated customers of the National Westminster Bank (which trades under the registered trade mark NATWEST) following the bank's well publicised computer failure which left a goodly proportion of its 17.5 million customers either unable to get hold of their cash or, almost as bad, unable to spend it. The moral of the story is simple: if you want to use a trade mark as your Twitter handle, be prepared for the consequences. A katpat goes to Chris Torrero for this link to the Telegraph.
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Monday, June 25, 2012
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The UK-US extradition treaty requires dual criminality. Richard O'Dwyer can only be extradited if what he did would have been an offence under UK law.
ReplyDeleteIf so, then the obvious place to try him would be in the UK, and that should happen. If not, there is no basis for his extradition to the USA instead.
However, in the past there have been problems with criminal copyright proceedings in the UK, e.g. Higgs v. R, to the extent that the Court of Appeal has suggested it should be left to the civil courts ( Gilham v R, para 30).
So has O'Dwyer committed a crime under UK copyright law? The links on his website would have to be deemed to have been "communicating" the linked copyright works to the public, contrary to CDPA section 107(2A).
There's an argument to say that they were, but it's by no means certain. Just passively providing links like Google wouldn't, I'm sure.
The nearest case law is Newzbin 1. There, Kitchen J held that it was "communication to the public" to actively provide a technical and editorial indexing system, which enabled users to piece together all the components of a film which had been split up into thousands of separate Usenet messages.
O'Dwyer's website obviously didn't go as far as Newzbin did. But neither was O'Dwyer just being passive like Google. He was actively encouraging users to seek out and upload good links.
Is that "communication to the public"? I think it needs to be carefully argued in front of one of the specialist IP judges who will have a clearer understanding of the law than could be expected of a Westminster magistrate.
Presumably O'Dwyer duly filed his appeal?