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

[shaithis]

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

And therein lies the problem.

Judges do not understand technology. We only have to look at the plethora of cases (including Apple IP cases) to see they "don't get it".

Unless the material was on HIS site, what he did was no different then a search engine. yes, he was being sneaky, yes he knew he was linking to warez (as do goggle!) but he was not hosting it, nor was he supplying it.

I guess we have to differ on this one....because I think this is pure BS that could be used for far more nefarious means and we all know what happens once a precedence is set in law.

The goalposts are moving.....now it's not just hosting, it's linking to.....how long before it's "discussing" or "being an acquaintance of"?

[TheAnimus]

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.

It's not about that at all.

When someone is clearly hand picking links to illegal content, that becomes a problem under US laws.

I wonder what percentage of his files were legal and illegal. Google probably has at worst 90% legal links? Has a clear take down procedure etc.

From what I understand this guy had mostly illegal links, and no clear take down proc!

This is what makes the difference, its not a case of the girl been arrested for whoring because she has tits, its because she only spends her nights jumping in mens cars then taking money.....

[TheAnimus]

You're not seriously suggesting that British citizens should be subject to US law, are you?

Absobloodylootley!

If I go to the states, I should be acting by their laws.

If I make a telephone call to the states, which then I mask in a 'swatting' fashion, I have broken the law in that country, just because I've been sat here doesn't matter, we have agreements in place with them.

The idea that your exempt from laws because your hiding behind a computer is a worrying one!

[shaithis]

When someone is clearly hand picking links to illegal content, that becomes a problem under US laws.

Goggle lets you craft a search that gives you your hand-picked illegal content results.....with a much larger selection to draw from......where's the difference? They are facilitating exactly the same service, just better disguised.

I wonder what percentage of his files were legal and illegal. Google probably has at worst 90% legal links? Has a clear take down procedure etc.

So, 2-3 years after the Piratebay fiasco kicked off and google still gets hits strait to their main page....either goggle are not complying or the powers that be are not bothering to ask them to take down material but they are forcing the extradition of a teenage UK national......Hmmmmm. Something does not add up.....

Also, are you suggesting that what he did would be "ok" if he had padded it out with a load of links to legal content?

[TheAnimus]

Goggle lets you craft a search that gives you your hand-picked illegal content results.....with a much larger selection to draw from......where's the difference? They are facilitating exactly the same service, just better disguised.

Not so, google has many users, only a tiny fraction are pirating etc. The name is generic.

TV Shack or whatever it was called, as its name demonstrates had "hand picked" content, this is the important part, google's stuff is crawled by a bot, I believe this was not the case for tvshack.

So, 2-3 years after the Piratebay fiasco kicked off and google still gets hits strait to their main page....either goggle are not complying or the powers that be are not bothering to ask them to take down material but they are forcing the extradition of a teenage UK national......Hmmmmm. Something does not add up.....

Again its about how much of it is legal, what their take down procedure is.

Read over what Saracen has explained in this thread, if you believe that its injust to extrodite someone who has a website which links toalmost 100% illegal material, then say that. Trying to compare it to a almost entirely legit service such as google (which has no "hand picked" illegal results....) is disengenious

[Netvyper]

Hmm,this is a hell of a complex issue. I can only hope that the Judge had all the evidence & understanding to make the call correctly.

I can't quite wrap my head around this extradition stuffs though...

Trying to keep it information based... lets say, I know where production instructions for a US made drug happen to be available online, from a server in eastern europe somewhere. If I, as a UK citizen, host a link to it, on a UK based server... I'm probably breaking UK IP (Intellectual Property) Law... by allowing UK users access to this content? But if an american happens to stumble upon it... I can then be extradited to the US, despite the fact that I would be covered under UK Law for (almost?) any other crime committed in the UK?

Moving to the physical, and assuming that smuggling/customs law isn't applicable (for theories sake).
Marijuana is legally available in the Netherlands. As a UK Citizen, I acquire said product, and sell it in the UK. Breaking the UK Law. An American buys it, in the UK... can I be extradited to the US for that?

My lack of clear understanding, and rationale for some of this stuff scares the hell out of me

[shaithis]

TV Shack or whatever it was called, as its name demonstrates had "hand picked" content, this is the important part, google's stuff is crawled by a bot, I believe this was not the case for tvshack.Again its about how much of it is legal, what their take down procedure is.

Please stop talking about take downs....until pirate links are taken down from main search engines I fail to accept that as a valid point in this discussion. You cannot prosecute one person based on such a technacality when your not following through on those same laws with everyone.

Read over what Saracen has explained in this thread, if you believe that its injust to extrodite someone who has a website which links toalmost 100% illegal material, then say that.

I have...a few times. Practically every time we talk about LINKING, not HOSTING....that is the implication....is it not?

Trying to compare it to a almost entirely legit service such as google (which has no "hand picked" illegal results....) is disengenious

Oh please, get with the technology. YOU hand pick the results with googles help...they facilitate the search....I see it as no different. As I said earlier......they want to go after the source, not the linkers. Without source material there is nothing to link!

[Saracen]

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).

Not as I understand it. Just because the authorities here can prosecute doesn't necessarily mean they do, should or will.

As the judge put it

There are said to be direct consequences of criminal activity by Richard O'Dwyer in the US albeit by him never leaving the north of England.

Such a state of affairs does not demand a trial here if the competent UK authorities decline to act, and does, in my judgment, permit one in the US.

Also, the fact that no charges have been brought here doesn't preclude the chance that they would have been, or for all I know, yet will be.

But I can't see that an absence of charges here should preclude the possibility of extradition, otherwise all that has to happen here for the clear purpose of the extradition treaty to be frustrated is for the authorities here to decline to charge. As I understand it, if he had been charged here, he'd be tried here. But he hasn't been, yet, anyway. And I'm not aware of any specific indication of intention to charge him here.

[Saracen]

And therein lies the problem.

Judges do not understand technology. We only have to look at the plethora of cases (including Apple IP cases) to see they "don't get it".

Unless the material was on HIS site, what he did was no different then a search engine. yes, he was being sneaky, yes he knew he was linking to warez (as do goggle!) but he was not hosting it, nor was he supplying it.

I guess we have to differ on this one....because I think this is pure BS that could be used for far more nefarious means and we all know what happens once a precedence is set in law.

The goalposts are moving.....now it's not just hosting, it's linking to.....how long before it's "discussing" or "being an acquaintance of"?

You still haven't read the judgement, have you?

The judgement quotes the specific mechanism used, including IP addresses, location of server (Netherlands) etc, and describes the linking process in some detail, including the point that the infringing files were not stored on O'Dwyer's server.

It also quotes this from O'Dwyer's site

Further the FAQ or Frequently Asked Questions portion of the TVShack.net website contained an admonishment to users who complained about delays downloading or streaming content from a particular cyberlocker website linked to TVShack.net. Specifically, TVShack.net reminded it's users about the amount of money they were saving by viewing the movies and television programs via the TVShack.net website. In particular, TVShack.net reminded it's users "you're saving quite a lot of money (especially when putting several visits to the theatre or seasons together) by having to wait a little bit of time to access infringing content through the website".

That makes it pretty clear that O'Dwyer knew, full well, that he was providing a service deliberately aimed at providing access to infringing content. Please indicate, to support your ludicrous assertion, where Google or the like do that?

Are search engines capable of having links to infringing material? Patently, yes. And that's dealt with by the judge, and it is the nature of this service, the way it was done, that makes it perfectly clear that the judge rejects the common carrier defence used successfully in previous cases.

Judges aren't technical experts, but nor are they fools, and this one makes clear he fully understands the distinctions between what O'Dwyer's site did, and what even some other dubious sites did, much less search engines.

And yes, we'll have to differ on this one, because as far as I'm concerned, you're simply wrong.

[TheAnimus]

Please stop talking about take downs....until pirate links are taken down from main search engines I fail to accept that as a valid point in this discussion. You cannot prosecute one person based on such a technacality when your not following through on those same laws with everyone.

This is an important part of the safe harbour defense for hosting, but also important for someone who is making a linked site.

I have...a few times. Practically every time we talk about LINKING, not HOSTING....that is the implication....is it not?

I have been talking about linking, saracen has.....

Oh please, get with the technology. YOU hand pick the results with googles help...they facilitate the search....I see it as no different. As I said earlier......they want to go after the source, not the linkers. Without source material there is nothing to link!

You don't know how google works clearly.

They have spiders which crawl the net, they then use some secret sauce voodoo and page rank some based on the more sites which link to it been the better etc.

The thing is, if I want to find a perfectly legal uk technology site on google, I will. His site offered almost nothing but pirated content, and that is been generous, I doubt that there was ANYTHING there which wasn't illegal.

Now sure, he only offered links to it, but if your entire site is helping people find illegal content, and your making even if it was a peak of £15k pcm, or well over £100k pa, then I'm sorry but your profiting from crime!

[cjs150]

I always thought that if a British citizen was doing something in Britain then whether his/her actions were legal or illegal was something that the UK courts had to decide.

Clearly US believes their law should apply worldwide so I suggest we start extradicting from US all US individuals who have ever advertised on the web anything which is illegal to sell here - guns for example

[shaithis]

Oh well. Keep on supporting such stupid actions until one day you or someone you know gets prosecuted by association, then you might think differently.

My last words on the subject:

Not a single piece of pirated material has been removed from the net as part of this case.

Bravo the US and UK law...they really know how to get it right

[Saracen]

....

Trying to keep it information based... lets say, I know where production instructions for a US made drug happen to be available online, from a server in eastern europe somewhere. If I, as a UK citizen, host a link to it, on a UK based server... I'm probably breaking UK IP (Intellectual Property) Law... by allowing UK users access to this content? But if an american happens to stumble upon it... I can then be extradited to the US, despite the fact that I would be covered under UK Law for (almost?) any other crime committed in the UK?

....

Certainly not by using the mechanism used by the US against O'Dwyer.

Here's one reason. For the section of the copyright act used to justify the offence that provides the 12-month sentence the Extradition Act requires as a minimum, you either have to be acting as part of a business, or "to such an extent as to affect prejudicially the copyright of the owner".

Even if you did manage that, the judge goes into some detail as to why the "common carrier" defence does not apply in this case.

For common carrier, think of this. If you plan a crime (say, a bank robbery) and discuss it over the phone, are BT responsible if they happen to be your phone provider? If you mail a letter, are Royal Mail liable?

There has to be a significant element of control by the site over the contents, and O'Dwyer clearly, in the opinion of the judge, met that criteria. For an example, note the arrogance of his statement I referred to in the quote above. But even if there is that degree of control, you still have the other criteria I mentioned to get over.

Is this setting a carte-blanche precedent? No. Should it make other operators of sites like TVShack nervous? Well, he hasn't been extradited yet and it still may not happen, but in general, hell, yes.

Oh, and this sort of thing, by the way, is part of the reason why HEXUS is very careful as to exactly what we allow on this site and what we don't. None of us here on the mod team, nor the site owner, want to be facing extensive and expensive legal proceedings. So we're quite strict in what we allow. O'Dwyer, on the other hand, seems to have gone out of his way to, quite deliberately, provide direct links to materials he knew were infringing, and made a fair bit of money by doing it. In my opinion, he deserves everything that's happened to him so far, and most of what looks increasing likely to happen top him.

[Saracen]

I always thought that if a British citizen was doing something in Britain then whether his/her actions were legal or illegal was something that the UK courts had to decide.

Clearly US believes their law should apply worldwide so I suggest we start extradicting from US all US individuals who have ever advertised on the web anything which is illegal to sell here - guns for example

How many times do I have to say it? What he did was illegal here too. Not my view or opinion, but the determination of the judge.

Using the exact basis of this decision, we could not extradite an American for owning a gun precisely because it's legal there, and if O'Dwyer did was legal here, he would not be facing extradition. But the determination of the judge is that it is an offence here, too.

[aidanjt]

If I go to the states, I should be acting by their laws.

If I make a telephone call to the states, which then I mask in a 'swatting' fashion, I have broken the law in that country, just because I've been sat here doesn't matter, we have agreements in place with them.

Except he neither went, nor phoned, the United States. His very British website *received* traffic from US citizens. It was the US citizens who initiated the connection, and retrieved the so-called illegal listing.

The idea that your exempt from laws because your hiding behind a computer is a worrying one!

And the idea that just because you're connected to the internet you're subject to US dominion is frankly terrifying.

[Saracen]

Oh well. Keep on supporting such stupid actions until one day you or someone you know gets prosecuted by association, then you might think differently.

Oh, please, you just won't admit you're wrong. And if someone I know gets prosecuted as O'Dwyer has, they'll deserve it, and I won't have any sympathy. It will not happen to me.