Mark Summerfield, a patent attorney, analyses the current UK alleged piracy/copyright extradition case with major international ramifications. As well, there's links to the NYT coverage of proposed new US laws which are even more draconian, and to an SMH story of the real-life experience of an Australian extradited and jailed in the US for a similar 'offence'.

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Extradition to US is doubly doubtful

By Mark Summerfield*

You may have been following the news – or, at least, trying to, considering the poor quality of some of the coverage – about 23-year-old UK citizen Richard O’Dwyer, who is studying ‘games software development and interactive media’ at Sheffield Hallam University.  He is also accused – with others – of operating a website, firstly from TVShack.net, and subsequently from TVShack.cc, which aggregated links to third party websites from which copyrighted first-run and other movies and television programs could be downloaded or streamed.  It is not alleged that TVShack actually hosted any pirated content itself, however O’Dwyer appears to have admitted to earning approximately $22,000 (£15,000) per month from advertising on the site.

TVShack.net was one of the sites closed down when US Immigration and Customs officials ‘seized’ the offending domain names in June 2010 (the US Attorney’s media release is still available, in PDF format).  If you attempt to access the site now, you will first be presented with an official ‘domain name seizure’ notice, and then be redirected to this guilt-inducing YouTube video explaining the human consequences of piracy.  The US authorities have since been tenaciously pursuing those said to be behind the seized domains.  O’Dwyer has become the most high-profile target in recent days, as a result of an application by the US government for him to be extradited from the UK to face charges of copyright infringement in the United States.  If he is extradited, and ultimately found guilty, he faces a sentence of up to ten years in a US Federal penitentiary, of which he would necessarily serve at least 85% under US ‘non-parole’ laws.

And things are not looking good for O’Dwyer, with District Judge Purdy in the Westminster Magistrates’ Court, issuing a ruling on 13 January 2012 finding no barrier to grant of the US Request for extradition.  (Decision: The Government of the United States of America v Richard O’Dwyer – PDF).

I should point out at the outset that I am a patent attorney, and not a copyright lawyer.  I have no formal qualifications enabling me to provide professional opinions or advice on any of the legal questions in Richard O’Dwyer’s case.  However, as a concerned citizen I have an interest in the issues raised by O’Dwyer’s circumstances.  As a stakeholder in the intellectual property system, and advisor to clients in relation to intellectual property rights, I have a professional interest in the workings and health of the system generally.  And it has always seemed to me that if you want people to respect the law – and, by extension, to respect intellectual property rights – then the law must not only be reasonable, it must be seen to be reasonable.  Most importantly, the consequences must be commensurate with the crime, and there is considerable doubt in my mind that this is so in O’Dwyer’s case.

CRIMINAL COPYRIGHT INFRINGEMENT

Copyright infringement is commonly a cause of civil action.  That is, a copyright owner may sue an alleged infringer for damages.  In these circumstances, infringement may prove expensive, but it does not result in jail time or a criminal conviction.  However, some forms of copyright infringement – most notably the large-scale activities we would recognise as organised ‘piracy’ – may be prosecuted as criminal offences.  For example, in September 2010, Australian Federal Police conducted coordinated raids on 21 homes and businesses in Adelaide, Melbourne, Perth and Sydney, seizing thousands of pirated goods including music, DVDs, rip-off designer jewellery and Microsoft software worth tens of thousands of dollars (see Police launch biggest piracy raid in history at Fairfax online).

This is all very well when the suspects are themselves the pirates.  I certainly do not condone copyright infringement, or indeed the infringement of valid intellectual property rights of any kind.  I could hardly be a patent attorney if I did!  But most forms of IP infringement are not criminal offences.  They do not trigger potential extradition to a foreign country.  And they do not lead to a possible term of ten years in a foreign jail.  And while replicating and uploading copyrighted content for others to download – particularly if it is done for profit – may well justify the exercise of the full force of the law, surely merely providing links to pirated content is an infringement (if at all) of a different order?

INFRINGEMENT BY LINKING?

On one view, any search engine facilitates the same infringing acts as the TVShack site.  It seems likely that, with the right search query, Google could be coerced to provide a link to any of the content available via similar links from TVShack.  This is not to say that TVShack and general web search engines such as Google should be treated identically.  There is a clear qualitative difference between a tool which indexes the entire world-wide web, and provides global search services, and a site dedicated to aggregating links to (mostly) illegally-uploaded content.  TVShack not only provided a searchable database of available movies and TV programs, it actively encouraged users to submit links to new content not already covered.

There is a perfectly defensible case to be made for the proposition that the law should provide for sites such as TVShack to be shut down, and their operators held accountable, at least via civil proceedings, but quite reasonably also via criminal law enforcement.

But extradition?  Up to ten years in jail?  For providing links to content, while the parties responsible for making that content available in the first place largely walk away scot-free?  To my mind, that makes no sense.  And while I have come to expect the US government to launch metaphorical ‘wars’ on various contemporary ‘evils’, I am astonished at the willingness shown by the judge in the UK extradition proceedings to turn over one of the country’s own citizens into the hands of belligerent US law enforcers.

REQUIREMENT FOR ‘DUAL CRIMINALITY’

Perhaps the most surprising thing to me about the ruling is the Judge’s finding that O’Dwyer’s actions would be an offence under UK law.  This ‘dual criminality’ test is a prerequisite for extradition under the agreement which exists between the UK and the US.  As the Judge explains in his decision:

S.78 (4)(b) [of the Extradition Act 2003] requires this court to be satisfied the conduct involved if committed in the U.K. would be an offence against the criminal law. Specifically S.137 (2) (b) requires:

“the conduct would constitute an offence under the law of the relevant part of the United Kingdom punishable with imprisonment for a term of 12 months or a greater punishment”.

IS LINKING TO COPYRIGHT MATERIAL AN OFFENCE IN THE UK?

It does not appear from the Judge’s reasons that the particular circumstances of this case, i.e. the provision of a service linking to infringing content, have come before the British courts before.  The only remotely relevant UK case discussed was R v Rock & Overton (from the Crown Court in Gloucester), in which the alleged infringer was found to enjoy the benefit of a defence available to parties who merely act as a ‘conduit’ to the infringement of others.

Interestingly, there has been an exactly analogous case in Australia.  In Universal Music Australia Pty Ltd v Cooper [2005] FCA 972, Stephen Cooper was the registered owner of the domain name mp3s4free.net and the originator, owner and operator of the MP3s4FREE web site, which provided a linking service to digital sound recordings stored on third party websites.  Just like O’Dwyer, Cooper did not charge visitors to the web site any sum of money for the downloading of music sound recordings, but derived income from the website through advertising.

The judge in the Australian case found that Cooper, through the MP3s4FREE web site, did not infringe the relevant provisions of the Copyright Act 1968 because ‘[i]t is the remote websites [i.e. not mp3s4free.net] which make available the sound recordings and from which the digital music files are downloaded as a result of a request transmitted to the remote website’ (paragraph [63]).

The Australian Cooper case was cited by O’Dwyer’s lawyers, and considered by District Judge Purdy.  And while the UK legislation no doubt differs in some respects from that of Australia, the Cooper case had also been considered favourably by the presiding judge in Rock & Overton.

It was therefore clearly open to the judge to find that O’Dwyer’s conduct did not constitute an offence in the UK.  At the very least, in consideration of the only available guidance, there must be very strong doubt that the conduct is criminal under UK law.  The standard, as I understand it, to be applied by the judge is the ‘balance of probabilities’, i.e. is it more likely than not that O’Dwyer’s actions would constitute an offence in the UK?  I see nothing in the decision to suggest this is the case.

However District Judge Purdy somehow managed to reach the conclusion that the facts of O’Dwyer’s case are sufficiently different from those of Rock & Overton, and to satisfy himself that ‘the conduct alleged in the instant request meets the dual criminality test and would be an offence in this jurisdiction.’  The judge was at pains to point out, on multiple occasions in the ruling (and in bold text), that all of the materials submitted to the court had been considered, even though the majority is not discussed.  I have to say that this causes me to feel that the judge doth protest too much!

IS THE JUDGE ABROGATING RESPONSIBILITY FOR A UK CITIZEN?

I am personally extremely uncomfortable with this decision.  There just seems to me – although speaking as a non-expert in any of the relevant areas of law – to be insufficient basis for the finding that the ‘dual criminality’ test is satisfied.  I have read and re-read the ruling, and I just cannot be satisfied that it is more likely than not that O’Dwyer’s actions in operating the TVShack web site would constitute an offence under the UK law.  What guidance there is in decided cases points the opposite way.

District Judge Purdy contends that this case is distinguished by its facts, but does not convincingly support this view.  He points out that a full consideration of the facts is something that must be left for the trial court.  If this were an interlocutory proceeding prior to a UK trial, this attitude might be excusable.  But by abrogating responsibility in this case he is effectively sentencing O’Dwyer to trial by a foreign government, in a foreign country, under foreign laws, and before a foreign jury.

WHAT’S NEXT FOR RICHARD O’DWYER?

This is not the end of the road for Richard O’Dwyer.  He is entitled to appeal to the High Court, and will certainly do so.  Furthermore, the final decision to extradite him, if and when finally cleared by the courts, lies with UK Secretary of State for the Home Department, the Rt Hon Theresa May MP.

I sincerely hope that O’Dwyer’s appeal is successful.  If he has committed a crime in the UK, then he can be tried in the UK.  But if not, then he cannot be extradited.  If his appeal is not successful, then his case may yet become a political hot-potato, because there will be many in the UK (and elsewhere) who will be strongly opposed to handing a young British man over the to the US authorities on tenuous copyright infringement charges.

The US may be a friend and political ally as a nation, but it has proven time and again that its justice system can be brutal on those who get caught up in it.  We must not forget that we are talking about a civilised country in which many states nonetheless continue to impose capital punishment.  And we must not let our similarities, common interests and valuable allegiances blind us to important differences.

*  Mark Summerfield is a registered Australian Patent Attorney. A version of this article first appeared on his Patentology blog: blog.patentology.com.au

ENDS

FURTHER TO THE ABOVE; The New York Times is reporting on further attempts in Congress to widen the reach of extra-territorial laws against ‘piracy’…as defined by US corporations; and the Sydney Morning Herald is weighing in with the Australian experience:

Bills to Stop Web Piracy Invite a Protracted Battle
The Obama administration's statement of opposition to anti-piracy legislation let the technology industry claim a victory, but few in Silicon Valley or Hollywood consider the battle over.
http://www.nytimes.com/2012/01/16/technology/web-piracy-bills-invite-a-protracted-battle.html?

An Australian tells his story of being extradited to the US – and jailed – over ‘’piracy:
http://www.smh.com.au/technology/technology-news/advice-from-a-convicted-file-sharer-give-up-and-go-to-us-20120117-1q4r4.html