News - UK Student faces 10 years in US jail for copyright infringement

[shaithis]

Of course, the right course of action would be to monitor his site and shut down the places he was linking to........and then serve him a cease and desist.

Maybe if "team America" took the correct and logical approach, they would get more support....

[BobF64]

So, you agree that all search engines should also be accountable and stood beside him in court?

You cannot have a law for one and not the other.

Plus, before you mention that he exerted control over the links, so do search engines.

But search engines are explicitly protected from such things, because they link content blindly until someone tells them it shouldnt be there.

In the same way that car manufacturers arent responsible for the driver speeding, even though they make cars that can go well over the speed limit.
In the same way that gun makers arent guilty of multiple murders because some owners go on killing sprees.

The list can probably go on for a long while, but ultimately its quite simple, theres one rule for "innocent" businesses and another for "innocent" people.

[Smudger]

It raises a couple of issues.

First, the nature of offences when the internet is involved, precisely because you can do things from anywhere, host things in one country and provide access to another, while living in a third. In many places, and many ways, the law has yet to catch up with that.

As for "merely" hosting links, well, if I "merely" describe how to build a bomb, how to make the chemicals, and to brew explosive, how to construct a timer, and how to get it past airport security, can I expect a "visit" from well-armed police? Probably, and I'd deserve it. But all I've down is write words, I haven't told anyone to build a bomb, much less encouraged them to use it.

Okay, the analogy only goers so far, but if this site was, as appears to be the case, largely aimed at facilitating copyright infringement, then he was telling people where to get the components to build a copyright bomb. And, according to reports, when the site was taken down he immediately put another one back up, with a pointed hint at contempt for authority.

He was, as far as I can make out, running a site which relied on being a parasite, feeding off of the work of others, and according to reports, making quite a lot of money out of it. There is, in my view, little qualitative difference between hosting copyright infringing materials, and hosting links telling people where to find the actual files. Either way, the object of the exercise is to infringe copyright, and to make money doing it.

If he's convicted, then I can only say he deserves it, and being young, or a student, or "naive" as his mother apparently said, is no excuse, any more than it is for any other criminal action. He's made his bed, and now it's time to lie in it, even if it looks like it might be a bunk in a prison cell.

And this wasn't, from what I can gather, a tiny little hobby site, either. This is not an individual copying a few films or CDs for his mates. It's the provision of assistance for copyright infringement on a large scale.

This is all well and good, but as a British citizen, who committed his 'crime' (if any can be proved), shouldn't he be tried under British law? What's your reasoning for the US having jurisdiction in the UK?

[Scribe]

So presumably the US now has a offence of "commercial terrorism" on the statue books?

Personally I think what he was doing was criminal - certainly he was profiting from the abuse of copyrighted material to the tune of approximately half a million dollars. However, to extradite him under provisions designed for threats to life is neither proportionate nor warranted. I would suggest that since the offences were committed by a UK national, presumably in the UK, then it's UK copyright law that applies, and it's in an English court that he should be tried.

I would have thought that recovery of some/all of his "profits of crime" should be carried out and since he's been operating his illegal (by US laws) operation for four years that four years in an English jail has a certain symmetry.

Always makes me angry when the issue of UK citizens being shipped off to the US for "justice" comes up - especially when we have some senator/congressman come on the screen to say how poor the UK justice system is. And don't get me started on how extradition seems to be a one-way street, always UK->US.

If the content wasn't licensed for viewing in the UK and the server wasn't hosted in the US then it should be the US's responsibility to block said content as it doesn't violate UK law (he's not distributing copyright content) and should be out of their jurisdiction, that's the whole reason the American's are moaning about needing SOPA is because they admit foreign servers are outside of their jurisdiction.

If some of the content was licensed in the UK, it should be the responsibility of the licensees in the UK to try the student in the UK courts.

[shaithis]

But search engines are explicitly protected from such things, because they link content blindly until someone tells them it shouldnt be there.

Why can I still search for piratebay on every search engine then?

[Saracen]

So, you agree that all search engines should also be accountable and stood beside him in court?

You cannot have a law for one and not the other.

Plus, before you mention that he exerted control over the links, so do search engines.

No, I don't agree it, because the search engines aren't doing what he allegedly did.

[kalniel]

I don't understand why he's being extradited? Are his servers based in the US? Is his site hosted in the US? If not, he's committed his 'crime' on UK soil and should be subject to UK law.

He's providing a service to the US I guess. Otherwise you might have a site based in some secretive province providing child abuse services/images and say it was perfectly fine if it was legal in that country.

[aidanjt]

Why can I still search for piratebay on every search engine then?

A more important question is, 'why shouldn't you'?

[shaithis]

No, I don't agree it, because the search engines aren't doing what he allegedly did.

They are, they are linking to pirated software sources.

Search engines order results and try to do it based on relevance.....so choosing the correct search criteria will get you a set of results tailored to warez sites.

Where is the difference? (oh we know where the difference is, the UK student isn't bringing millions of dollars per year into the US economy).

[aidanjt]

He's providing a service to the US I guess. Otherwise you might have a site based in some secretive province providing child abuse services/images and say it was perfectly fine if it was legal in that country.

*facepalm*

[Saracen]

So does this open the door for the extradition of any UK citizen doing something that is a crime in the US but not in the UK?

If it's legal to host links to copyrighted material in the UK then as a UK citizen on UK soil I don't feel he's broken the law (certainly a grey area morally, he wasn't doing anything 'good' by providing the links).

Ignoring the US->UK only trend of extraditions... could the UK try and charge someone in the US with something that is legal there but not legal here, ie owning a handgun? I don't understand how one countries laws can be used outside of it's borders...

Could Pakistan (unlikely as we probably dont have a treaty with them) request a British married gay couple to be extradited? No... it's legal here... slightly extreme example I know.

"Team America: World Police" seems fitting here...

No, it doesn't open this door, because in the opinion of the judge what O'Dwyer did is a criminal offence in this country, and moreover, as one that carries a maximum 2-year sentence on indictment, one that complies with the 12-month criteria in the Extradition Act.

Despite all the hot air, erroneous claims and hysteria in this thread, let's get this clear - in the opinion of the judge, this is a criminal offence in this country. To be specific, it meets the requirements of section 107 (2A) of the Copyright, Designs and Patents Act, 1988.

Of course, a higher court may disagree, but this extradition could not have been granted at this stage, by the judge, if that were not the case. So all the faff and speculation about what else might end up in extradition is just that - faff. The Extradition Act has a "dual criminality" test. It must be an offence in the country seeking extradition (the US, in this case) and an offence here, carrying at least a 12-month sentence, or the EX-Act does not permit extradition.

O'Dwyer's lawyers, unsurprisingly, argued that what he did was not an offence under s.107(2A). They lost on that point, and both the other points they contended as well.

[Saracen]

They are, they are linking to pirated software sources.

Search engines order results and try to do it based on relevance.....so choosing the correct search criteria will get you a set of results tailored to warez sites.

Where is the difference? (oh we know where the difference is, the UK student isn't bringing millions of dollars per year into the US economy).

Not what he did, according to the judge, and not what the judge decided on. Try reading the actual judgement, not press reports.

[Saracen]

This is all well and good, but as a British citizen, who committed his 'crime' (if any can be proved), shouldn't he be tried under British law? What's your reasoning for the US having jurisdiction in the UK?

We haven't sought to prosecute. Maybe we should have.

But the US has, and according to the judge, they have met the requirements of the Extradition Act. And the US doesn't have jurisdiction in the UK. What they have is an extradition treaty.

[Spud1]

Very very tricky one this..

My initial reaction on hearing the news was that this was wrong wrong wrong on every level..but thinking about it a bit more, it's not so black and white.

Firstly the extradition issue - This one is wrong through and through imo - as already discussed in this thread. Totally unfair w/r to the balance of power with the UK and USA - they simply give us a name and take the person, we have to provide more evidence than you'd ever see in a typical murder trial to get someone extradited (exaggerated but you get the point).

All that said however, this guy is clearly in the wrong, and his case is so very different to that against the pirate bay, Newzbin et al. What those sites do is link to (and actually host) perfectly legal files that contain further links to small chunks of pirated software, which can be used by external software to download and re-construct those chunks into pirated software/tv/etc.

What this guy was doing was hosting direct - it's the exact equivalent of the old HTTP warez, where you would have a site like "Freegamez4all" which linked through to hacked yahoo accounts or hacked FTPs containing the pirated material. It's direct linking, not mearly "signposting the way".

A subtle difference but an important one both conceptually and in law. He deserves to be prosecuted for it - I would argue under UK law rather than the US law though..the whole extradition issue is a pain.

[Scribe]

No, it doesn't open this door, because in the opinion of the judge what O'Dwyer did is a criminal offence in this country, and moreover, as one that carries a maximum 2-year sentence on indictment, one that complies with the 12-month criteria in the Extradition Act.

Despite all the hot air, erroneous claims and hysteria in this thread, let's get this clear - in the opinion of the judge, this is a criminal offence in this country. To be specific, it meets the requirements of section 107 (2A) of the Copyright, Designs and Patents Act, 1988.

I see 2A is a relatively new addition from 2003, however even that states that the person must 'communicate the work to the public' not 'communicate the location of the service communicating the work'. What's also funny is that the 2 year sentence was also introduced for 2A alone, when exactly did we form our extradition treaty requiring a 2 year sentence again? hmmmmm

[crossy]

No, it doesn't open this door, because in the opinion of the judge what O'Dwyer did is a criminal offence in this country, and moreover, as one that carries a maximum 2-year sentence on indictment, one that complies with the 12-month criteria in the Extradition Act.

That's what I don't understand - this "person" commits a crime here yet we seem to be forced to hand him over to the US. I'll restate my opinion that if he's committed a crime here then we get first dibs on him, and the US can wait.

Or is it the case that American justice takes precedence over ours...

(PS many thanks for the elegant summary of the case, of which I reproduced only a snippet above).