http://nakedsecurity.sophos.com/2012/01/19/extradition-of-tvshack-richard-odywer-right/


Cant wait until they put him in the general population of the federal pen...going to be rough for mommas boy o'dwyer..but im sure bubba and leroy will treat him gentle :)



The extradition of TVShack's Richard O'Dywer: is it right?
















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by Lachlan Urquhart on January 19, 2012

Comments (16)


Filed Under: Featured, Law & order







UK student Richard O'Dwyer is facing copyright infringement charges
in the US for running TVShack.net, a site that provided links to movies
and television series infringing copyright.
On the 13th January, Westminster Magistrates Court confirmed that the 23-year-old could be extradited to the US for trial.


This case highlights broader policy issues about US-UK extradition
relations, not to mention US attempts at extending its jurisdiction for
enforcement of alleged copyright infringement offences.
Before the site domain was seized in 2010, it is reported that O'Dwyer made about £15,000 per month in advertising revenues. If you visit the site at the time of posting this article, you will see this image shown below.





If you click on the image, you are shown a [url=http://www.youtube.com/watch?v=6YScoXn31Mg&;annotation_id=annotation_938004&feature=iv]"Piracy is bad" video hosted on YouTube[/url].


Since mid-2010, US Immigration Customs Enforcement (ICE) has been
following a campaign of domain name seizures for illegal websites called
Operation in Our Sites.
TVShack.net was an ICE target but was not hosted on servers inside
the US. The .net gTLD suffix is managed by US registry operator Verisign
and ICE used this link as a basis for asserting jurisdiction to prosecute TVShack.net.
O'Dwyer
is UK-based, and apart from the .net domain, there doesn't seem to be
any other direct ties with the US. Well, other than the content being
produced by US-based creative industries of course.
In this judgement, O'Dwyer's counsel, Ben Cooper, sought to rely on, the 'mere conduit' defence of Regulation 17 in the UK E-Commerce (EC Directive) Regulations 2002.


This legislation provides protection from liability when the service
has limited control over its transmissions. Relying on the similar 2010 UK 'TV-Links' case,
O'Dwyer's counsel claims that Regulation 17 prevents other legitimate
linking services like search engines being challenged for copyright
infringement, and, he argues, TVShack should be treated similarly.
Unfortunately for O'Dwyer, Judge Purdy didn't accept this argument
because O'Dwyer actively chose what links were posted on TVShack.net and
exerted control over transmissions in excess of a 'mere conduit'.
s78, in Part II of the controversial Extradition Act 2003, has a
'dual criminality' requirement. This procedural step requires conduct to
be a criminal offence in both the UK and the US.
Judge Purdy was satisfied that the alleged conduct was a chargeable
criminal offence in the UK, namely s107 (2A) of the Copyright, Designs
and Patents Act 1988. Whether he could be convicted of this offence is
another matter. The appeal may readdress this issue, but if he gets
tried in the US anyway we may never know the answer.
Although the procedural extradition requirements have been met, it
raises the question: why extradite Mr O'Dwyer to the US when the alleged
offence was committed within the UK and there is a suitable chargeable
crime available in UK law?
It is difficult to discuss unfair extradition process without mentioning the plight of alleged hacker Gary McKinnon.
Although indicted on severe alleged charges, hacking into various US
databases including NASA and the US army, his extradition case now been
dragging on for 9 years.
Such a long process has to be avoided for O'Dwyer. It simply seems
unjust when when the UK courts and legal system can try the case in the
UK rather than rely on a foreign legal system.
General concerns regarding the imbalance in UK-US extradition process
have come to the political fore recently. Significantly more UK
citizens are extradited to the US than vice versa, leading to
suggestions of a review by the UK Human Rights Joint Committee, and recent debate in the House of Commons.
I hope this increased political scrutiny may see the development of a
more balanced extradition process. Greater efforts to prevent
extensions of US jurisdiction in O'Dwyer's case at appeal may be the
first step in the right direction.