UK judge okays extradition of college student for copyright infringement case

Rich Fiscus
14 Jan 2012 16:31

A UK college student targeted by the US government for alleged criminal copyright infringement lost his initial bid to block extradition to the US.
Immigration and Customs Enforcement (ICE), a division of the US Department of Homeland Security, wants Richard O'Dwyer extradited for operating a website, called TV Shack, where links pointing to infringing streams and downloads from other websites were documented.
TV Shack was one of the first websites targeted by ICE as part of Operation In Our Sites, under which they have seized numerous domain names. They claim to have that right based on the use of domain names which fall under the authority of US-based Verisign.
Even though several of the domain names seized have been connected to individuals outside the US, so far O'Dwyer is the only person to face extradition in connection with the ICE operation. This is apparently a side effect of changes to the extradition agreement between the US and UK in 2003. Under the new rules, UK judges are not given the opportunity to evaluate or consider US evidence in their decision.
After the ruling was announced, O'Dwyer's mother criticized the treaty, saying she was:

disappointed with this Government for signing us up to this treaty which has openend up the floodgates to America to come and seize British citizens without having set foot out of this country. That extradition law needs fixing fast.

Under UK law there are a number of potential problems with O'Dwyer's extradition. The most obvious is the question of criminality. In order for extradition from the UK to the US to be authorized, the alleged actions must also be criminal in the UK.
In short, that involves two separate questions. The most fundamental is whether links to infringing content are, themselves, infringing. In other words, does providing links equal distribution? Additionally, if linking is distribution under the law, there's a question of whether merely collecting money to operate a website constitutes a business activity.
According to the judge in a 2010 case against a similar website called TV Links, linking is definitively not distribution under UK law. The case was dismissed, on the grounds that the UK implementation of the 2002 EU Electronic Commerce Directive explicitly defines electronic distribution in a way that excludes links to third party websites or services.
Prior to that, in a case involving torrent tracker site OiNK, a jury acquitted site operator Alan Ellis of criminal copyright charges. Rather than distribution, that case revolved around the question of whether collecting donations transformed OiNK into a business. Obviously the jury rejected that claim.
No doubt that was a deciding factor in the subsequent decision to drop criminal charges against FileSoup admins. In that case, prosecutors specifically told the judge it was "neither necessary nor appropriate to continue to pursue the matter in a criminal court."
These three cases are significant to O'Dwyer's extradition. Thanks to the publicly available court orders from the ICE seizure of TVShack.net in 2010, we already know their allegations revolve around linking, not distribution. In fact, ICE specifically states the links on TV Shack point to third parties [read the Full text of order below]:

Betweeen June 17, 2010 and June 24, 2010, ICE agents were able to access the TVShack.net website and link to cyberlockers and stream and/or download illegal copies of movies. In order to stream and/or download illegal copies of movies, the agents clicked on links for the below-listed movies on the TVShack.net website, selected links to stream and/or download the movies from the below-listed cyberlocker sites, and streamed and/or downloaded copies of the selected movies from the relevant cyberlockers in a manner that indicated that the entire movie had been uploaded and made available to users.

The sources of the streams and/or downloads themselves were listed as Zshare.net, DivxDen.com, and NovaMov.com. In other words, none of them were distributed by TV Shack. No distribution means no copyright infringement per the ruling in the TV Links case. All the same, he finds himself facing extradition.
His fight is not over yet. He plans to appeal the decision, which will apparently have to wait until the extradition order is approved by the Home Secretary.