

Copyright wars heat up: US wins extradition of college kid from England - bmking
http://arstechnica.com/tech-policy/news/2012/03/copyright-wars-heat-up-us-wins-extradition-of-college-kid-from-england.ars?comments=1#comments-bar

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tptacek
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...](http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/us-
v-odwyer-ruling.pdf)

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.

~~~
mindslight
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.

~~~
tptacek
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.

~~~
SoftwareMaven
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.

~~~
tptacek
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".

~~~
SoftwareMaven
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.

~~~
tptacek
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.

~~~
white_devil
> 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.

~~~
tptacek
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.

~~~
white_devil
> 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?

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VonLipwig
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.

~~~
tptacek
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.

~~~
poodougnut
So what is the offence he committed in the UK?

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

~~~
poodougnut

        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.

~~~
tptacek
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.

------
lignuist
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>

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dazbradbury
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.

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

Terrifying.

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

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

~~~
untog
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.

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genu1
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"

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

~~~
danssig
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?

------
meow
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)..

~~~
crusso
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.

------
Mordor
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.

~~~
tptacek
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.

~~~
youngtaff
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

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

~~~
aes256
A 'kid' is defined as "a child or young person"

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

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trustfundbaby
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.

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WorkingDead
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.

------
junto
Notably, Dave is visiting Obama. Coincidence?

