This Kat is speechless, both from the anonymous person in Waitrose who gave her a throat lurgie and from the attempts by the US Immigration and Customs Enforcement (ICE) to extradite a UK university student for hosting a website which provided links for visitors to download unauthorised copyright material on other sites.
Richard O'Dwyer is a 23 year old undergraduate student at Sheffield Hallam University. He hosted the websites TVShack.net and TVShack.cc which provided links unauthorised copies of films and TV shows which visitors could then chose to download. In late May 2011, he was arrested and accused of conspiracy to commit copyright infringement and criminal infringement of copyright by ICE. The websites have since been taken down and contain the ominous notice that the domain names have been seized by ICE in accordance with the seizure warrant obtained from the US Attorney Office for the Southern District of New York.
Put at its simplest, these offences were allegedly committed by a UK resident, via a website which was created in the UK and hosted in the UK. Accordingly, is there any reason for the case to be determined in the US?On the face of it, this Mr O'Dwyer's case sounds very similar to that involving TV-Links in the Crown Court in early 2010. The website www.tv-links.co.uk linked to videos hosted on sites like YouTube and itself carried absolutely zero illicit content. His Honour Judge Ticehurst found that TV-links was a mere conduit within Regulation 17 of the The Electronic Commerce (EC Directive) Regulations 2002. Accordingly, TV-Links were not be liable for damages, for any other pecuniary remedy or for any criminal sanction as a result of transmission in a communication network. His Honour also rejected claims that TV-Links had breached section 20 of the Copyright Designs and Patents Act 1988 by making infringing material available to the public.
Although the TV-links case was determined in the Crown Court and did not establish a binding precedent, it is useful for it demonstrates that an argument along these lines could succeed in a higher UK court. Indeed this conclusion makes sense, for most linking makes it easier to locate works which are already available to the public. The result is also consistent with other jurisdictions, such as Australia, where the Federal Court in Universal Music Australia v Cooper
(2005) held that a link to files which contained copyright infringing material was not 'making available' (however at first instance and on appeal to the Full Federal Court it was held that Mr Cooper had 'authorised' infringement: see Cooper v Universal Music Australia Pty Ltd (2006)).
It is perhaps for this reason that ICE are attempting to take Mr O'Dwyer's case to the US. However, in doing so, ICE are arguably setting off another jurisdictional time bomb. The extradition disaster involving Gary McKinnon comes to mind. For those unfamiliar with those proceedings, Mr McKinnon was a computer hacker with Asperger syndrome who has been accused of hacking into networks owned by NASA, the US Army, US Navy, Department of Defense, and the US Air Force. A significant difference between the two cases is that Mr McKinnon's case involved accessing computers in the US, whereas Mr O'Dwyer's actions were wholly in the UK. Mr McKinnon claims that he was looking for evidence of UFO cover ups. Mr McKinnon has been fighting the extradition charges for over nine years and has had his case heard by the House of Lords in 2008, the European Court of Human Rights in 2008 and even in a discussion between David Cameron and Barack Obama during the latter's visit to England in 2010.
Against this backdrop, it is timely that today the Joint Committee on Human Rights (comprised of MPs and peers from all three major parties) recommended the government to reconsider its heavily-criticised Extradition Act 2003 which implements treaties with the US and EU so that Britons were not sent overseas for trial over alleged offences committed wholly or mainly inside the UK or without any evidence being offered against them. Only time will tell if the government will implement any of these proposals.The IPKat asks the inevitable question: should Mr O'Dwyer stay or should he go?
Merpel says that she would prefer to purchase the DVD box sets of Melrose Place rather than fool around with all this linking and downloading malarky ...
