Copyright wars heat up: US wins extradition of college kid from England

arstechnica.com

140 pointsbmking69 comments

Lots of message board legal opinions on this thread. Few if any references to the actual ruling, which is here:

http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgment...

Things you'd want to know before forming an opinion of what happened here:

* The guy is alleged to have made over $230,000 (a sum that the US says has been tracked), and himself admits to making 15,000GBP per month(!) from the site.

* After having his domain (TVShack.net) seized in 2010, before the extradition request, he registered "TVShack.cc" and set the site back up (with a cute "Fuck the Police" banner). It's hard to know whether he'd have been extradited if he'd have just shut the thing down.

* Criminal copyright infringement does in fact exist in the UK, as does contributory infringement; the key element that establishes criminal infringement is "intent to profit", which has been clearly established. The guy made a lucrative business brokering pirated movies.

* The UK has a "common carrier" statute (there termed "mere conduit", which, more poetic, innit?) which the defendant lost claim to by (a) exercising control over who could post what videos to his site and (b) idiotically posting copy on his website about how people were "saving money" by watching movies through his site instead of at the theater.

It's easy to believe that lots of people have gotten innocently tangled up in legal nonsense because of the chaos and (perhaps) overreach in copyright enforcement. This doesn't look like one of those people.

There wouldn't be nearly as much outrage if he were merely being prosecuted in the UK, which as you demonstrate, is entirely feasible. If the UK has criminal laws banning offensive free speech (and from what I know of the UK, they probably do), and a UK citizen posts 'Fuck Muhammad' specifically directed at Arabic countries, he should not be extradited to said countries to be tried for blasphemy.

First, I am happy that the US does not have laws against offensive speech.

Second: your analogy is imperfect. The defendant isn't charged with violating a UK/US law in the UK. He's charged with violating it in the US. Two sets of judges apparently considered the jurisdictional issue here and both concluded that the harm alleged occurred in the United States, and that O'Dwyer should therefore be tried in the United States.

The analogy is better than that. If the location a crime occurs is determined by where the browser is at, the reading "F*ck Muhamad" in an Arab country should make you subject to their laws. Even if it's only on .sa domains (if the US can claim jurisdiction over .com, certainly Saudi Arabia can claim it over .sa), that is a hugely dangerous precedent.

I would not be complaining about extradition to Sweden, since that is where their business was located, but citizens of the world should not be subject to the capricious laws of the United States, just because they went online.

As a US citizen, this disgusts me.

The "capricious law" you're referring to here is nearly identical in the UK.

Personally, the "offensive speech" argument 'mindslight brought up doesn't so much make me question extradition so much as it disquiets me about the idea of "offensive speech" laws. You can't be extradited from the US for saying "Fuck $RELIGOUS_FIGURE" because saying "Fuck $RELIGIOUS_FIGURE" simply isn't a crime here. We got that one right; the UK got it wrong.

Note that UK laws restricting speech have been fig leaves for other politically-motivated legal proceedings; people in the UK have tried (and failed) to exploit the UK's libel laws to punish US speech they disagreed with.

It is not particularly controversial in either the US or UK legislatures that running a 6 figure business on pirated first-run movies shouldn't be legal. I realize that it's controversial on message boards, but a lot of things are controversial on message boards that turn out not to be in the "big room". It was also controversial on Hacker News and Reddit that Hans Reiser was convicted on "circumstantial evidence".

For the record, when I refer to capricious laws, I'm discussing from the viewpoint of people outside the US who, even though they may be doing things legally in their country, are suddenly at the whim of the US government.

Certainly, O'Dwyer should be subject to UK laws. I have no problem with his arrest. I have a problem with his extradition, which, given he could be prosecuted at home, one can only guess is happening because the penalties are so much more severe in the US. Why take an ounce of flesh when you can get a pound...and show the world which government is really in charge.

The UK signed a treaty with the US and something like 50 other countries that requires them to extradite under these circumstances. Because the law broken exists both in the foreign country and domestically, and because the evidence behind the crime is clear, there isn't even a fig leaf of a justification for not extraditing; to not extradite, they would have to break their own extradition treaty.

Frankly, I think the core of this argument is that you and I disagree about the legitimacy of the underlying law. There's nothing wrong with that disagreement. You're entitled to the opinion that criminal charges for commercial violation of copyright are wrong, idiotic, &c. But what I'm commenting about has nothing to do with the actual law; I'm just saying, this doesn't appear to be a process abuse.

Fun fact: we had an argument about the US "bullying" the UK over extradition about a year ago, in the McKinnon case. At issue: a "controversial" renegotiation of the extradition treaty between the US and UK that lowered the evidentiary standard for extradition to the US. A few minute's Google research showed the bullying was exactly in the opposite direction --- that prior to the treaty renegotiation, the evidentiary standard for extradition to the US was extreme and far stricter than that of extradition to the UK.

Additional fun fact: O'Dwyer has superior due process protections in the US than he does in the UK.

> Additional fun fact: O'Dwyer has superior due process protections in the US than he does in the UK.

The same protections that Manning has? They don't seem to amount to much.

I'm not sure what you're trying to say here, but O'Dwyer can't be tried in a military court, and neither O'Dwyer nor Manning can be coerced into testifying against themselves (unlike in the UK system, which does penalize defendants for not testifying).

This is one of those arguments like "yeah well tell that to the people at Gitmo" that seems like it must have much more moral force to the person making the argument than to anyone hearing it. The US government is not systematically depriving fraud suspects of due process rights.

> The US government is not systematically depriving fraud suspects of due process rights.

No, only in cases where someone having those rights would be a nuisance to the US government.

Manning has been tortured by your government for a long time now, purely because they wanted to make an example out of him. Is that alright?

Basically, if you don't have due process rights whenever the US government unilaterally decides that you don't, then what exactly do the rights matter? Are they even rights anymore?

> alleged occurred in the United States, and that O'Dwyer should therefore be tried in the United States.

It occurred on the internet, so it occurred everywhere, not just in the US or the UK, but in every place that accessed the internet. I see no more reason that he ought to be subject to US law than that web programmer ought to be subject to Iranian law.

There is great danger in making us subject to every country's law, which is what this effectively does. Sure, they did it because the sentence is much harsher in the US, but that doesn't make things better.

Or let me put this another way: if the US forces Canada to pass strong anti-circumvention laws (note: they have been lobbying for such) and those happen to somehow criminalize security research that you did, would you be happy to get shipped off to a foreign country over it?

I can't be shipped to a foreign country for circumventing copy protection because I don't do it commercially and do it exclusively for interoperability and security research, which are exceptions to the anti-circumvention laws we have in the US.

On the other hand, Canadians for years flaunted a loophole in Canadian/US law to sell DirecTV circumvention hardware to US customers. Message board geeks the world over said, "those are just signals traveling through the air! Signals traveling through the air can't be anyone's property!" I guess I have a hard time arguing with that point, but I don't lose sleep over not taking those people seriously.

Reminder: we're discussing a guy who made six figures running a website specifically designed and intended to get people to pirated first-run movies. Sorry, but the distinction between "links" and "actual media frames" is not an important one in UK law or US law. Nobody is being extradited for links on their Tumblr pages.

Those are only exceptions in the US. The USTR has been pushing other countries to make their laws even stronger than ours. Then they do the two-step and push to strengthen our laws to match.

Please note that I'm not arguing that this is some kind of abuse of process. If anything, I'm worried because it's perfectly normal and that will make reform that much more difficult.

If it could be showed that most of the harm had occurred in Saudi Arabia and the conduct was also criminal in the UK, then it would be very similar to this case (such an extradition would be blocked for other reasons, but the question of forum is essentially the same).

It's likely that he would be found innocent if tried in the UK, which is why people are quite angry about it. No successful prosecutions have ever been brought in the UK in similar cases and the CPS wasn't going to prosecute him here.

In my analogy, the majority of harm (and intended harm) also occurs in the Arabic countries - outrage, unrest, mental anguish.

Of course a judge came up with legal justification, otherwise there would be no extradition. That justification just happens to be dead wrong for the sake of convenience.

I'm not sure you've supported the latter argument, of "political convenience", with evidence.

That wasn't intended to be a well-formed argument, but okay, I edited and removed 'political' - the judge may indeed have been personally looking for the best way to assure punishment.

But make no mistake, courts gradually widen the concept of jurisdiction out of convenience. A court inherently assumes that it will always reach the correct decision, so choosing to decide on an issue causes it little philosophical burden (meanwhile, saying that one's self is irrelevant to a situation requires some pretty well thought out framing and justification). As a result, another unlucky sap is put through agony - even if they end up prevailing years later.

If this was some random guy who poked at a website, found SQL injection, told the company, and then the company looked at the logs and found out that the guy had dumped their whole database (in the course of seeing whether the SQLI actually worked) and had the guy prosecuted for the equivalent of felony computer fraud or misuse, I'd sympathize.

That actually happened. This actually happened too. What happened here is not so sympathetic. If you pull down 6 figures off pirated first-run movies and get an ICE site takedown, maybe not so much with the "putting the exact site back up on a different TLD with a fuck-you to the police on it", eh?

Sympathetic? Not so much. But when a future plaintiff is looking to cite precedent, most likely their court isn't going to say "In that previous case, that guy was obviously guilty of something, so that decision was possibly made out of expedience and we're not going to use it".

In fact, I'll go out on a limb and argue that a majority of rule-of-law-preserving precedents must be made when the defendant is/appears guilty - for if they appeared innocent, a court would probably find this by easier means rather than spending much effort nitpicking the procedural issues!

The problem is we have repeatedly had spineless and useless knee jerk Home Secretaries and Teresa May sadly is no different. If the US asks us to jump we merely ask "how high" and sell out our citizens rights.

The UK has a "common carrier" statute (there termed "mere conduit", which, more poetic, innit?) which the defendant lost claim to by (a) exercising control over who could post what videos to his site and (b) idiotically posting copy on his website about how people were "saving money" by watching movies through his site instead of at the theater.

That is a major point of contention.

The prosecution argued the "mere conduit" exemption does not apply because O'Dwyer "was intimately involved in deciding who was allowed to post links on the TVShack websites, which links would be posted [...]" but it is not immediately clear that by doing so he forfeited the exemption.

The applicability of the exemption hinges on the interpretation of "transmission", for example. In a case such as this, who initiates the transmission of copyright infringing material? Is it the cyberlocker service that hosts the copyrighted files? Is it the link aggregator site like TVShack that links to the cyberlocker service? Is it the search engine that links to TVShack that links to the cyberlocker service? You see where I'm going here.

Nor is it immediately clear that by selecting who could post links on the site, O'Dwyer forfeited the exemption. The regulation states a service provider is exempt if (amongst other requirements) it "did not select or modify the information contained in the transmission"

Does selecting posters of links to transmissions constitute selecting information contained in the transmission?

I don't know about the UK, but yes, selecting posters of links does potentially forfeit common carrier in the US (the law is not source code, so none of this is black/white; it depends on the circumstances).

But in this case, two points bear mentioning: first, there's more evidence about his intent to profit from copyright infringement than the manner in which he ran his site, and second, it kind of insults one's intelligence to suggest that TVShack was an innocent mistake. He was "informed" of this in 2010, when his domain was seized. Presumably, the money was too good for him not to start up again.

So? Most of the comments I have read don't dispute the fact that he (may) have committed crimes against UK and/or US laws.

The problem is that the UK allows extradition of its own citizens.

Of course this is a more general problem than just "copyright" and involves the fact that the UK let itself become some kind of colony of the US (ironically).

If an American college student displayed a banner on his website saying "Fuck Iran" (and you don't have to look too far to find such things: http://www.youtube.com/watch?v=2MiedE1CY9I) would you consider it ok to send him to Iran to be tried there?

- - -

Additionally, according to the ruling, he did not exactly provide a "cute 'Fuck the Police' banner"; it was a quote from someone else's work:

> Also posted on the homepage of this new website was the photograph of a rap music group and the title OF ONE OF THEIR SONGS “Fxck the Police” (capitalization mine).

And this is not even what the ruling says; the ruling is quoting the complaint produced by the U.S. Attorney’s Office for the Southern District of New York.

What you have listed in the parent is NOT what the defendant did; they're just allegations from the prosecution, produced in order to obtain his extradition.

>the key ement that establishes criminal infringement is "intent to profit"

Is this also true in the US, or only in the UK ?

Both.

The US, thanks to the NET Act, has an all-encompassing definition of "profit" though. But if he was making all that money, it's not really a stretch to establish it in either jurisdiction.

All the more reason that the UK should have been the one to prosecute.

Making 15,000GBP per month revenue or profit?

I, for once, would like to know how he managed to make that kind of income on a side-project. Perhaps up to some extent it can be applied to less "criminal" (if his was criminal) project.

It's bullsh*t.

I agree that a person doesn't need to actually visit a country to face extradition. I agree that the US should be able to extradite people who break their laws and harm American citizens and business.

However this doesn't look like a legal action to me. It looks like a political one.

The guy never hosted the content. He simply created a resource that made content already hosted on hundreds of websites elsewhere easier to find.

Where does it stop? If my website links to a site like The Pirate Bay or whatever does that mean I am helping people infringe copyright? If a US citizen verbally asks me where they can 'aquire' photoshop and I say.. "Oh you could probably find a torrent at blah address" does this book me a one way trip to the states?

US silliness aside it is demoralising that the UK Government provides so little protection to residents. This guy didn't physically harm anyone. He didn't make a site that specifically targetted the US. He didn't host the content. He didn't visit the US or host his site there. He didn't even break a UK law...

How you can send a resident to - potentially - be incarcerated in a foreign country for commiting an act which your own legal system doesn't believe is a crime is beyond me.

Nobody is going to extradite you for putting a link on your personal website to The Pirate Bay. In fact: they can't; even if that link technically does establish contributory infringement, your liability for posting that link is civil, not criminal.

That's not what this guy did. He made 15,000GBP/mo placing ads on a site that prominently featured first-run movies and included promotional copy he himself added suggesting that the site would save you money because you didn't have to go to a theater. It's the running a business on copyright infringement that gets you charged criminally.

So what is the offence he committed in the UK?

The Copyright, Designs and Patents Act of 1988, Section 107, (2A), which establishes provisions for criminal infringement.

    107(2A) 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”.

What's meant by 'communicating' here then? And wouldn't the second clause---by the same standard---make linking to copyrighted material that is illegally distributed unlawful in any case? What a terribly written law.

Are you a UK lawyer? I'm not. I don't feel like I can productively argue this point with you. What I can say is that the citation of that law and the conclusion that O'Dwyer should be tried for violating it came from a UK judge; I linked to the ruling upthread.

Careful! You're openly talking about "Th3 Pir4t3 B4Y"! If someone looked up the site mentioned in your comment, they might infringe, and you've contributed. Giving the name of the place to find pirated material is a very short jump from an http link.

maqr, I actually googled "Th3 Pir4t3 B4Y" and got to "The Pirate Bay" website. Thanks, brother! Just learnt about this site! boy I was soo naive buying all those CDs and DVDs and BluRays!! I say: no more!

This is scary. Not only for British citizens, but for all citizens of the EU, since we got the European Arrest Warrant:

http://en.wikipedia.org/wiki/European_Arrest_Warrant

I'm not sure why this site is being treated any differently to all the other link sharing sites out there? Is he being made an example out of?

Just seems like this is all at a great cost to both the UK and US, and yet, does very little to tackle the perceived problem. Link sharing sites continue to exist. As his site was taken down after authorities spoke to him, was any money seized? Either way, if the police feel the matter has been dealt with, I'm not sure what the US aim to achieve out of this.

Perhaps we should compile a list of US based link sharing sites and ask they focus on problems at home before extraditing others. Maybe then the laws and procedures involving such sites will be suitably developed to be able to take overseas.

Infuriating. There is not precedent, or even laws in place supporting what the DoJ/ICE are doing here. They are out of control and we need this kid to win a supreme court decision to put them in check.

Sean Fanning did something similar and got his ass sued off, but he DID NOT spend time in prison.

We are prosecuting the people innovating. Why not put Vint Cerf on trial for fucking creating the system that allowed people to access TV-Links?

This shit is so backwards I can't tell if they are being willfully ignorant, or ignorant for pay.

Because he made it easy to charge him. Unlike many other link sharing sites, the defendant here exercised direct control over who could post links. Also unlike many other link sharing sites, the defendant here wrote promo copy that directly referenced watching first-run movies for free.

It's a FUD grenade, surely.

Seems to me this is an attempt by the US to say to the world: "You must live by our laws now".

Terrifying.

The judge rules that equivalent laws existed in the UK, which was the basis of the extradition.

Surely if the equivalent laws did actually exist in the UK, then he should be tried in the UK.

He could have been, but the UK courts said that they had no interest in prosecuting. Seems strange that it opens up the possibility of extradition, but there you are.

Terrifying.

The effects of local policy making/lobbying exhibits zero friction in transitioning to the global stage.

And without precedence there is no checks/balance to ratify/amend international standards.

It's been reduced simply to tit for tat; "You forfeit the rights of your citizens and I'll give you diplomatic favors?"

"Deal"

As a British citizen I'm not sure if this makes me sad or angry. I think it's both.

If I were British I would question what our nation's sovereignty actually means. It's not like this kid killed an american and fled back to the UK.

Personally, I would like to see a law that says we will never extradite someone to a country where they could face a harsher penalty than they would at home for the same crime. If nationality can't offer you at least that, what is it actually buying me?

It's more of a massacre than war.. the strength of parties involved is simply not comparable (mostly due to apparently spine less UK govt)..

The situation is pretty pathetic. I'm not at all an advocate for piracy, but big media companies just have way too much control over government.

To me it just serves as a reminder to always act to reduce the power and reach of government.

How is a UK resident reasonably expected to understand foreign laws and judicial processes? One would hope Theresa May, as Home Secretary, is fighting to protect the British people by pulling the plug on the web.

They can't, which is why you can't easily be extradited from the UK for foreign crimes that aren't also crimes in the UK. Unfortunately for him, the crime he's charged with is also 1:1 a crime in the UK.

But if you look at the case of Christopher Tappin, who was caught in an FBI sting allegedly exporting missile batteries to Iran...

1. The batteries were dual use 2. He never actually did the deal, he was named as the exporter by the guy who did 3. He thought the batteries were going to Holland.

Now there may be more to this than we know, but none of the above is a crime in the UK

He's 23. He's not a 'kid'.

A 'kid' is defined as "a child or young person"

23 is young. He's a young person, ergo he is a kid.

Deleted comment

Jgc isn't in favour of what has happened. His point is that 23 years old is not by any definition "a kid" (nor even when he started it at 18, which is irrelevant anyway) - other than headline bait, is it relevant at all? Would it be less bad if it was a 40 year old in this case?

Deleted comment

1.) 18 is legally an adult, I don't see why this is any different than when an 18 year old murders someone or deals drugs. Obviously the crimes are very different, but if/while what he did is illegal, why should the legal system treat it differently age-wise than anything else?

2.) He kept doing it for years, which indicates he didn't (or at least hadn't yet) regret it.

The point is that the extradition process is daunting enough in itself. In many respects it amounts to punishment before trial. You are separated from your loved ones, transported to a foreign land, locked up in a foreign jail and tried in a foreign court under foreign law.

This particular extradition case is made more objectionable by the fact that O'Dwyer is not a self-sufficient adult. He's a 23-year-old university student.

It is made more objectionable still by the fact that he is being charged with something that many do not believe should be a criminal offence, and to the best of my knowledge, is not a criminal offence in the United Kingdom.

If linking to copyrighted material is an offence, then surely every search engine should be indicted for facilitating copyright infringement on an unimaginable scale?

2.) He kept doing it for years, which indicates he didn't (or at least hadn't yet) regret it.

He stated just yesterday after the court hearing that he didn't regret it; that it had helped his university studies "to no end" given he is studying Computer Science.

Is he supposed to regret not breaking any laws in the country of which he is a citizen?

Exactly and what will happen when he gets to the US is they will lock him up until he plea bargains i.e. admits guilt to get the thing over with.

If he doesn't plea bargain they'll just delay his trial for longer (happened to the Natwest Bankers who extradited for stuff to do with Enron)

I wasn't at all arguing in favour of what is happening. The now-deleted comment I replied to was arguing that he was only 18 when he first did it, and then lots of people do foolish things at that age and later regret them.

If he had committed a crime that we all agreed should be against the law, such as murder, at 18 and kept doing it regularly until he was 23, would anybody here be defending him for his age? THAT was my point.

What we are effectively doing here is balancing the costs and benefits of extradition. My argument is that both the severity of the alleged offence and the situation of the defendant (including but not limited to their age) are relevant factors in determining those costs and benefits, and thus whether extradition is an appropriate course of action.

If I understand correctly, you are proposing that age should not be a factor. In order to do so, you raise the example of a murder suspect, and point out that popular sentiment would not differ significantly towards 18-year-old and 23-year-old murder suspects.

I would argue that your example is an exceptional one, in which the severity of the alleged offence (murder) is so great that age becomes irrelevant (at least over the age of legal responsibility).

In this case, the alleged offence is nowhere near as severe. As I mention above, it seems it is not even an offence in the United Kingdom. Hence the potential benefits to society from having O'Dwyer extradited, tried, and potentially convicted, are much less.

You are still completely missing my point. I 100% believe he shot not be extradited. I would have that opinion whether he was 18, 30, 50, whatever, and that opinion would not even take age into consideration. His age would only become relevant if he was under the age of legal responsibility, in which case it would then become another reason against extradition.

Are you in favor of this person seeing jail time for his alleged crimes?

No, I was replying to a (now-deleted) comment that was purely about age, written as if this whole thing would be OK if he wasn't so young.

The thing that bugs me is this ...

If an American had done this (or something similar enough) would the US government allow them be extradited to the EU to be tried and incarcerated if found guilty?

I think not.

I think this is very telling of how fragile and insecure the institutions of the US economy and government are that they could be so threatened by nothing more than flickering lights on a computer screen.

Notably, Dave is visiting Obama. Coincidence?

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