On 13 January 2012, Judge Quentin Purdy ruled that the 23-year-old computer science student Richard O'Dwyer can be extradited to the United States for prosecution for copyright infringement. If found guilty, O'Dwyer could face up to ten years in a US prison. The current Home Secretary, Theresa May, has two months to sign off on the extradition. O'Dwyer can appeal the decision; if it fails, he can be extradited within a month.
O'Dwyer, a student at Sheffield Hallam University, set up and operated the TVShack.net website from his bedroom, hosting it on servers located in the Netherlands. The US alleges that TVShack included links to unauthorised copies of copyrighted TV shows and films and claims that O'Dwyer is guilty of copyright infringement under S.107(2.A) of the UK Copyright, Designs and Patents Act 1988. However, in 2010, the TV-Links case established a non-binding UK legal precedent that a website merely linking to infringing content is not itself guilty of copyright infringement.
There is still some uncertainty about the rationale for the US's claim of jurisdiction. The initial impression is that the US is basing its claim on the fact that the .net top-level domain, like .com and .org, is managed by the US-based company Verisign. In 2010, following increasing complaints from the entertainment industry bodies MPAA and RIAA about international copyright infringement, ICE targeted a number of sites offering unauthorised streams and copies of sports broadcasts and other copyrighted material.
This type of domain name seizure is becoming more common despite the lack of due process and despite the uncertain validity of imposing US law on foreign websites by this means. No one has ever been extradited for copyright infringement.
The question of whether O'Dwyer would be guilty of copyright infringement under UK law is crucial because S.137(2) of the Extradition Act only allows for extradition if the alleged actions would constitute an offence in both countries. In the UK, an offence must be punishable a minimum of a one-year prison sentence to qualify.
The case raises two sets of concerns. The first surrounds the Extradition Act 2003 itself, which was controversial even when it was passed. The Act was developed bilaterally by the US and UK in response to the 2001 World Trade Center attacks and intended to facilitate the extradition of terrorists and serious criminals, not those infringing copyright. Extending its operation to cases of copyright infringement sets a dangerous and disproportionate precedent for violating human rights. If O'Dwyer has committed a crime in the UK, he should be given a fair trial in his own country. Instead, his lawyers argue, as relatively small fry, with little resources to defend himself, he's being used in an attempt to set a precedent that could open up a mass of international litigation and extradition efforts. The wider effort is a multi-faceted attempt by the content industry and the US government to introduce harsh and restrictive international copyright laws under which enforcement will disproportionately chill free speech and innovation on the internet.
The second set of concerns relates to the lack of due process for shutting down access to websites. The top-level domains .com, .net, and .org were set up as international domains with no ties to any specific country. Extradition on the grounds that the US has jurisdiction over any site registered in those TLDs would create legal uncertainty for businesses and individuals selecting them for their sites and give the US the green light to extend the international reach of its legal system. The result for the UK would be to discourage investment and stifle innovation by internet start-ups and digital intermediaries.
What you can do:
- Sign Julia O'Dwyer's petition.
- Write to the Home Secretary to protest O'Dwyer's extradition.
- Oppose domain name suspensions without due process within the UK.
- Join the Open Rights Group to campaign for digital rights.