Jimbo Wales: Richard O'Dwyer and the new Internet war

I found this piece deeply disingenuous. Breaking it down paragraph by paragraph†:

(1) Wales believes copyright is valid and a force for good.

(2) But Wales thinks the O'Dwyer case isn't valid, and that the assertions prosecutors have made are propaganda.

(3) TVShack is a site consisting solely of links to other sites; some of those sites are lawful, others not.

(4) O'Dwyer operated the site responsibly, honoring takedown notices, but the law is so complicated nobody could really stay 100% in the lines.

(5) The US claims O'Dwyer made lots of money. O'Dwyer's lawyers say he did so lawfully.

(6) Copyright is good, but it shouldn't be unlimited.

(7) Internet services are supposed to supply their operators with "safe harbor" protections.

(8) O'Dwyer's a clean-cut geeky kid who could start the next big Internet service.

(9) The case against him is thin, and his extradition is an outrage.

(10) There's a war between the Internet and content providers.

(11) O'Dwyer is the human face of that war.

Well, allow me to retort.

Richard O'Dwyer admitted to a UK Magistrate Court that he had been earning "approximately £15,000 per month" operating TVShack, a user-generated content site that provided a directory of downloadable videos. Of course, we're all adults here, and we know what those videos were. But don't take my word for it: O'Dwyer admits --- both to the court and (more notably) in the promo copy of his own site --- that the purpose of the site was to facilitate video piracy.

Contrary to popular opinion, the UK does in fact have criminal copyright infringement statutes††. In both the US and the UK, what tends to get you charged criminally for infringement is building a business around that infringement. O'Dwyer was making something like a quarter million dollars a year from his business. The legal issues here are 1:1 between the US and the UK.

It probably didn't have to play out like this for O'Dwyer. Before he was charged, O'Dwyer had his domain seized. A cautiously enterprising commercial video pirate might take that as a signal to back off. O'Dwyer moved TVShack to a .cc domain, and put up a "fuck the police" banner on the site.

As Wales points out, in both the US and the UK, Internet services enjoy protections against the infringing activities of their users (the US calls these protections "common carrier" or "safe harbor"; the UK calls them "mere conduit" protections). But copyfighter activists tend to cite these protections without explaining them. In particular: they leave out the fact that to qualify for these protections, you have to make what amounts to a good-faith effort to avoid infringing content on your site.

O'Dwyer appears to have done the opposite. Rather than studiously avoiding any knowledge of infringing content on his site, he ran promotional content on the site stating that TVShack was a great way to save money on first-run movies, by watching them on your computer rather than at the theater. UK magistrates assert that he selected links and posters to his site to maximize the number of popular movies that would appear. You can't maintain common carrier immunity simply by honoring takedown notices. Of course, you probably can't make a quarter million dollars a year from a simple list of links to videos while maintaining mere conduit protections, either.

Now, reasonable people can disagree that this amounts to a strong case for extradition. But agree or not, you should at least want the facts. Wales' plea carefully avoids providing those facts, instead pointing out how "clean-cut, geeky kid". But of course, you can describe virtually everyone ever accused of committing a crime on the Internet as "clean-cut" and "geeky"; we're computer nerds. That's what we look like. It would seem to me more relevant to know that O'Dwyer was making a quarter mil a year flaunting copyright, grooming listings of first-run movies, and mocking law enforcement. Maybe that doesn't change your mind about the case. Maybe, despite the fact that O'Dwyer is accused of harming US companies and not UK ones, the fact that he did so at a desk in the UK leads you to believe he should be charged in the UK. Fine! But can we at least start by being honest about what happened?

† as I do so, keep in mind: I think Wales is wrong, and wrote this plea carelessly. If you disagree with me, you're going to find my breakdown objectionable; perhaps, reply with your own.

†† *Copyright, Designs and Patents Act of 1988, Section 107, (2A)