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

[Saracen]

Firstly - if he has broken UK law then that's his issue. I was not sure he had and TBH I don't torrent so I would not know.

It is impossible to know if he has actually committed an offence until he's been tried and convicted. That is not the standard in ANY extradition, be it this or mass murder. What you have to be is accused of an offence that is an offence in the country you're being extradited to, and an offence here, and one that, if convicted, carries a maximum sentence of at least 12 months.

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Secondly - if he has broken UK law then he is subject to a UK trial IMHO. Of course you might think US law has precidence over UK law but I won't agree with you there...

Yes, he is. But the UK authorities have not (yet) elected to prosecute. They could, but so far, have not. Why this is you'd have to ask the CPS, but it may be that they do not consider it a priority, perhaps because the main victims were in the US.

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Thirdly - the law has been used against people who have NOT done a crime in the UK. At least this is what I have gathered. Perhaps there is evidence otherwise? ....

That's the whole point of extradition - to return people accused of offences in foreign lands to stand trial before a court in that land if the criteria of the Extradition Act are met. And a judge here has ruled that they were.

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Fourthly - you just don't get it though. He does need to have broken any law in this country does he? ....

As I have said repeatedly in this thread, you cannot be extradited unless the offence you are accused of in that foreign land is also an offence here (carrying a potential sentence of at least 12 months, so it doesn't apply to a vast array of more minor offences). It's a principle called 'dual criminality' and is one of the issues settled by the judge. The ruling is that what he did is an offence here. That, of course, could be overruled by a superior court if it goes to appeal and he wins, and the extradition has, as I understand it, yet to get the sign-off of the minister. But the extradition was challenged in a court, and so far at least, the ruling of a judge is that what he is accused of, and there seems to be little doubt he actually did what he's accused of, did constitute an offence here too. If it did not, the extradition would not meet the legal criteria and would have been rejected.

So who doesn't get it?

[cjs150]

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.

You are missing the point completely. This is not about extradiction but jurisdiction.

Countries have the right to make laws governing their own country and citizens but only in very rare cases does international law allow countries to make laws which govern other countries and their citizens acting outside of their home country (piracy was the original example dating from about 17th C and has since been extended to terrorism and, I think, child pornography).

Now I appreciate that most Americans (and particularly their politicians) believe that the whole world should obey US law, but the simple fact is that if they want to claim jurisdiction over acts done in UK by UK citizens then UK should be allowed to claim jurisdiction over acts done by US citizens in the US. So lets pass a law that any US citizen owning a gun which has not be licenced by the UK authorities is liable to be arrested if they ever land at a UK airport (no different to US actions on internet gambling)

[Saracen]

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It's not surprising that the Judge focused on 2a though is it, he had to stare at those lines of text until he found some twisted meaning as they're the only lines that would have allowed extradition, as opposed to looking at other points to see if he instead falls into another category of infringement, which would serve him a three month sentence + a level 5 fine, which seems to fit the magnitude of the crime somewhat more accurately.

You're right, it's not surprising the judge focussed on 2(A). But you're wrong about the reason.

The judge does not have to look for "twisted meaning", because it's in the complaint laid before him. He did not come up with 2(A). The barrister for the US did. That is the complaint, or rather part of it, that the judge has to rule on.

And it's the bit the US used because it's the bit that applies. The CDPA covers a whole variety of situations, and apply in a whole variety of circumstances. Some apply to everybody, and some only apply to businesses. Some apply to businesses and to others ins some situations. There's nothing at all unusual in a specific part of an Act being used to justify the charge, because the charge has to specify the specific offence, and the vast majority of Acts have a range of them. It;s true of, for instance, the Theft Act, which covers a much broader range of offences than simple theft, and it's true of the Offences Against the Person Act, which covers a huge range of serious, violent offences. You might be charged with ABH, GBH, Wounding, etc, and even with GBH, it can be s.18 or the lesser s.20 GBH (though since R v. Burstow, the difference in minimal). But in any event, the prosecution cite the specific offences, and that's exactly what was done here, and that's what was presented to the judge, in much the same way that the CPS specify the offence in a murder trial, not the judge.

Assigning some intent to the judge to find a justification for allowing the extradition is simply, like so much of the hype in this thread, wrong. He deals with the complaint, and the defence to the complaint, as put before him and rules on the law.

[crossy]

Now I appreciate that most Americans (and particularly their politicians) believe that the whole world should obey US law, but the simple fact is that if they want to claim jurisdiction over acts done in UK by UK citizens then UK should be allowed to claim jurisdiction over acts done by US citizens in the US. So lets pass a law that any US citizen owning a gun which has not be licenced by the UK authorities is liable to be arrested if they ever land at a UK airport (no different to US actions on internet gambling)

That's what I thought initially - but representations by my more-learned colleagues (Hi Saracen!) have convinced me that this is not the case. It's merely that UK and US both have cases to bring against this reprobate, but the CPS (UK) have decided not to push theirs, in which case it's the US that "comes up to the plate" - i.e. it's their shot. There's no suggestion that this is a case of US legal heavy handedness (although 10 years for what he's done still seems way off).

It's not surprising that the Judge focused on 2a though is it, he had to stare at those lines of text until he found some twisted meaning as they're the only lines that would have allowed extradition, as opposed to looking at other points to see if he instead falls into another category of infringement, which would serve him a three month sentence + a level 5 fine, which seems to fit the magnitude of the crime somewhat more accurately.

Agreed, although I'd prefer the SOB to get more than three months - as an example to others.

I'd guess they looked at his accounts, he might have been stupid enough to build a business on piracy, but I doubt he'd be stupid enough to not file accounts!

Here's a question that popped up into my addled brain - this toad's getting $15k/month - did he actually declare that income to HMRC? If not, then the scumbag's also guilty of some tax evasion - and I'm sure that the US would love if we did an "Al Capone" on 'im.

I'm also left wondering if the ratface was also claiming any benefits - in which case DWP might be very interested.

Point I'm trying to labour is that while the CPS may have "dropped the ball" perhaps there's other UK laws that he's violated.

[Andeh13]

soooooo..... the only difference between him & google is that google linked to legal stuff as well as the illegal!?

[Smudger]

depends what is ment by communicating work to the public.

if I take £2 and then tell you there is a pirate DVD on the floor behind that bush for instance, all I've done is linked to it.

What you've done there is taken money for linking to it. A closer analogy would be getting paid to hold a placard for a golf sale, whilst pointing to the DVD behind a bush.

[Saracen]

You are missing the point completely. This is not about extradiction but jurisdiction.

Countries have the right to make laws governing their own country and citizens but only in very rare cases does international law allow countries to make laws which govern other countries and their citizens acting outside of their home country (piracy was the original example dating from about 17th C and has since been extended to terrorism and, I think, child pornography).

Now I appreciate that most Americans (and particularly their politicians) believe that the whole world should obey US law, but the simple fact is that if they want to claim jurisdiction over acts done in UK by UK citizens then UK should be allowed to claim jurisdiction over acts done by US citizens in the US. So lets pass a law that any US citizen owning a gun which has not be licenced by the UK authorities is liable to be arrested if they ever land at a UK airport (no different to US actions on internet gambling)

I'm not missing the point at all. Jurisdiction is dealt with both by the Extradition Act, and the judge.

The Extradition Act deals specifically with this issue, and defines the criteria the judge has to apply. The judge deals explicitly with this issue in his ruling, and cites no less than Lord Justice Kay, Lord Phillips (the President of the UK Supreme Court) and HM Attorney General. The Ex-Act specifies that extradition on this "forum" issue shall be blocked if and only if specific conditions are met, including

it would not be in the interests of justice for the person to be tried for the offence in the requesting territory.

It also stipulates (s.83A(2) the position with regard to whether or not UK authorities have declined to prosecute. This has ALL been delay with by the judge, specifically, in the ruling.

As for the patently absurd example of your suggested gun laws, it's for the UK Parliament to decide if it wishes to pass such a law. If it was stupid enough to do so, then the implication is that any US national electing to come here either gets a UK licence to own a gun in the US (which is clearly daft) or doesn't come here. This ludicrous comparison has no relevance to this case.

The judge does, however, deal with the issue of O'Dwyer not having been in the US, and the basis for the offence committed there is given. And, as he points out, in addition to safe-guarding the rights of the individual, it is not the case that where a fair trial can take place, it is not in the interests of justice to allow cross-border justice to be frustrated by national borders without good reason, which is the whole point of an extradition system in the first place.

What a lot of people seem to have trouble with is the fact that O'Dwyer never left the UK. Suppose he designed and built a bomb that someone else, with his full knowledge and agreement, took the the US and blew up a public building. Would we expect him to be held to account for it? Or reverse it and suppose an American built and supplied a bomb that someone brought here, and that blew up on the Underground, killing dozens. Would we expect the designed and builder of that bomb to avoid prosecution for mass murder here, just because he never set foot outside the USA?

No, we'd expect him to be extradited, and to stand trial. It's not just about where the individual is, or lives, but about where the offence took place. And with the internet, that's very hard to establish. The US met the criteria, according to judge.

So no, I haven't missed the point. I just don't accept it.

[Saracen]

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There's no suggestion that this is a case of US legal heavy handedness (although 10 years for what he's done still seems way off).
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Indeed, BUT .... it's worth remembering that just about every offence has a maximum, and that they are rarely applied, except in the most severe cases. The reason for a range is to give courts latitude in applying more severe penalties for more severe examples of the offence.

It's also worth bearing in mind that several copyright infringement offences in the UK also carry a 10 year maximum, though this specific one is two years. So it's not as if the 10 year possible maximum in the US is exactly out of kilter with the potential maximum for copyright offences here.

So while he might get 10 years, we have no way of knowing what the odds are that he will.

[Saracen]

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Here's a question that popped up into my addled brain - this toad's getting $15k/month - did he actually declare that income to HMRC? If not, then the scumbag's also guilty of some tax evasion - and I'm sure that the US would love if we did an "Al Capone" on 'im.

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Mine too, though Animus seems to have covered it.

My view is ... he was providing a service (the website), and was receiving considerable revenue directly from it (the ad revenue). I'd love to be a fly on the wall when he tried to explain to HMRC how that isn't a business. My view, based on my training as a Chartered Accountant (albeit 30 years ago), and of dealing with HMRC for 30 years, is that he's got no chance in hell of making that fly.

[TheAnimus]

soooooo..... the only difference between him & google is that google linked to legal stuff as well as the illegal!?

Absolutely. The difference between him and google is that google has about 99% of its links as legal, applies no by hand filtering to them.

He had a site that specifically targeted what is normally copyrighted material.

Google does not target copyrighted material.

If a business is entirely built on making money via IP infrigment, carefully filtering out the legal, vs having a tiny fraction which is, and only due to it been "out there" with everything else. It makes a big difference.

What you've done there is taken money for linking to it. A closer analogy would be getting paid to hold a placard for a golf sale, whilst pointing to the DVD behind a bush.

The thing is I was trying to show how communication can be just the reference to find it!

Your comment about placard holding is not correct as it was the information which people gained from his links to pirated stuff which attracted them in the first place.

I've broken the law many times, but I hope I'm not high and mighty up my own arse about it.

[cjs150]

Saracen: You are completely wrong but for understandable reasons. Forum and jurisdiction are too completely separate issues although often confused (even by lawyers(. Forum is about where a trial should be held, jurisdiction is about which law applies.

If the USA has jurisdiction then the Extradiction Act deals with forum. My point is that the USA does not, or at least should not, have jurisdiction. The USA has no right, except in very limited circumstances, to pass laws which criminalise behavior of UK citizens carrying out actions in the UK, that is the sole jurisdiction of the UK govt.

You may think that my example of gun control is silly, but that is exactly what the US Govt has done in relation to Internet Gambling companies. If you are a director of an internet gambling firm operating fully in accordance with UK law and licensed by UK govt (I know most in fact operate from Channel Islands or Gibraltar), then you have to be careful never to land at a US airport, because the US authorities will arrest you.

This case should be appealed on the basis that the (very silly) UK student has absolutely no chance of a fair trial in the US because the US courts have consistently shown that they will not consider the jurisdiction argument and have held that US law has world wide application to non US citizens who carry out acts outside of the USA.

[cjs150]

(cont)
As for Saracen's argument about someone designing a bomb here and it being used in US to blow someone up...

Terrorism is one of the few examples in international law where laws made in one country are allowed to have worldwide jurisdiction. So a designer of a bomb is a part of a conspriracy to commit terrorism. Both UK and USA in those circumstances would have jurisdiction and the extradiction act would deal with the forum issue.

A better example is that Holocaust denial is illegal in some countries (Germany and Austria) but not here or in USA. So if you write and publish a book in the UK you will not be extradicted to Austria even if someone else takes the book over to Austria or sells it to an Austrian citizen. But if you go to Austria and give a speech denying the holocaust then Austria can later ask the UK govt to send you over to Austria for criminal trial (as David Irving found out!)

[Saracen]

Saracen: You are completely wrong but for understandable reasons.

No, I'm not.

Consider my above post as saying

The jurisdiction issue is dealt with both by the Extradition Act, and the judge.

rather than

Jurisdiction is dealt with both by the Extradition Act, and the judge.

I simply put it is a slightly short-form way.

.... Forum and jurisdiction are too completely separate issues although often confused (even by lawyers(. Forum is about where a trial should be held, jurisdiction is about which law applies.

Yes, I know. That's my point. I think I even quoted or at least paraphrased what the judge said. Roughly, it was that the jurisdiction is not over O'Dwyer because he lives in the UK, so the US is not asserting jurisdiction over the UK. They are asserting that the offence took place in the US, or at least, some did, as US citizens used the site and US citizens paid some of the advertising revenue. It is therefore an offence in the US, albeit one committed by an individual that has never been there. That is the nature of many cross-border offences where there may be dual or even multi-jurisdiction, and especially of internet-related offences, but that cross-border justice should not be frustrated just because someone is in or stays in another jurisdiction, given the modern worlds and the extent not just of personal mobility but of non-tangible property, let alone internet activities. PSA Phillips explicitly commented that forum should not be a matter for consideration by extradition hearing judges unless the issue is finely balanced.

They therefore assert that an offence was committed, in the US, by this individual and that gives them jurisdiction over that/those offences. They also assert that since it is also an offence in this country, and that is is one that falls within the requirements of the Extradition Act, that there is no bar to extradition under that Act. It therefore meets the dual criminality test in the ExAct.The judge agreed.

It's not me that wants to get into the arguments over forum. It's all those arguing that he should be tried here, not in the US. Some have even attributed base motives to the judge over that, despite the fact that all the judge is there to do is to determine whether the presumption in favour of extradition is frustrated by any of the statutory bars (and he decided it isn't) in which case he must pass the order to the Home Secretary.

In fact, we don't know why the UK isn't prosecuting, but I'd hazard a guess that it's because the bulk of the criminality, in that the bulk of the victims, were in the US. In any event, legislation, CPS guidelines and precedent after precedent all have things to say on forum.

I agree, lots of people are conflating forum and jurisdiction, but I'm not. Regardless of my view, the US contend an offence/offences took place in the US, in their jurisdiction. The judge agreed. They content that the offences meet the ExAct criteria, and that not bars exist. The judge agreed.

And as for internet gambling, I'm not going to get into that because, first, it's not what this threat is about, and second, I don't care much.

If the USA has jurisdiction then the Extradiction Act deals with forum. My point is that the USA does not, or at least should not, have jurisdiction. The USA has no right, except in very limited circumstances, to pass laws which criminalise behavior of UK citizens carrying out actions in the UK, that is the sole jurisdiction of the UK govt.

Well, take that one up with UK lawmakers. The issue, clearly, is about what actions were carried out where. Given the internet, it is far from clear exactly where certain things happened. For instance, publication. If someone writes a defamatory article, when and where does publication take place? In the days of print, it was fairly easy. If a book/article is published here but not in the US, publication has not taken place in the US. But if you publish on the web, well, virtually anyone, pretty much anywhere can read it. So does publication take place when/where I upload, or where a reader is when they download to read, or both?

We can assert that as O'Dwyer never left the UK, his "actions" took place here. But as his readers, and a fair few of those paying his advertising revenues were in the US, and he accepted that money, the US maintain, not without reason, that those activities took place in the US even though O'Dwyer wasn't there is person. I can buy goods in an online shop in the US, be subject to the T&Cs of that shop in the US, which operates under US state and federal laws, and have the goods shipped here. I have a perfectly valid contract under US law, and can hold the shop to account in US courts, despite having never set foot there (well, I have personally, countless times, but you know what I mean).

The law has to adapt to the complications of intangible goods, and of internet activities. But the UK has to accept those definitions, and once again, the judge did. Hence, no bar to extradition.

[Saracen]

.... Both UK and USA in those circumstances would have jurisdiction and the extradiction act would deal with the forum issue.

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Not really, or at least, not explicity. Unless it's changed very recently, the forum provisions haven't come into effect. Indirect effect might come about via the HRA, but otherwise, it's down to discussions among prosecutors (in this case, from the UK and US). It's less sure for category 2 countries (like the US) than it is for category 1 (like EU countries), but the the latter, the Eurojust provisions give a preliminary presumption that prosecution takes place where the majority of the criminality took place, or where the majority of the loss was sustained. And that may well be why the CPS haven't prosecuted, even though the Eurojust provisions don't apply to Cat 2 countries. It's not really the ExAct that deals with it, though.

[Biscuit]

I have tried to keep up with this thread, however, whilst interesting it has been quite difficult to palette at times, so i apologise if this has already been answered.

I understand why he was found guilty of crimes in the UK (Not entirely sure i agree with it but nevermind) and i think i understand the principles that people have tried to get across about how/when the extradition treaty is used. What i still dont understand how the extradition treaty was originally created for acts of terrorism but is now being used for copywrite issues?

[Saracen]

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I understand why he was found guilty of crimes in the UK ...

He wasn't, or not to my knowledge, anyway. The court, essentially, ruled that the offence he accused of was serious enough (by length of sentence if convicted) to justify extradition.

But one of the provisions of the Extradition legislation is precisely to avoid the double jeopardy issue. What we don't want is for someone to be tried in one jurisdiction, and if the verdict is not guilty, to be shipped off for another go at a trial, somewhere else. Just as you cannot (except in exceptional circumstances) be tried for an offence twice, here, you cannot be tried here, then somewhere else (or vice versa) for the same offence.

Part of the extradition process is to ensure that there is a case to answer, and that the crime alleged is sufficient to justify extradition. But he hasn't been found guilty of anything (related to this, anyway, as I've no idea if he has a record for something else) yet, because he hasn't been tried. The court hearing so far is to determine if the extradition goes ahead, not if he's guilty of anything.

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What i still dont understand how the extradition treaty was originally created for acts of terrorism but is now being used for copywrite issues?

That's because it wasn't created for terrorism offences.

The Extradition Act goes back to the mid 1800s (1870). It was given a major overhaul in the 1970s, was complicated by changing arrangements in the EU, with EU arrest warrant, etc, and was replaced by the 2003 Act in response to a whole series of issues to do with complexity, multiple extradition routes, duplication of responsibility between the Secretary of State and the Courts, and so on. It was not because of terrorism. But, if you think about the timing, terrorism was a major issue at the time, not least, the aftermath of 9/11. It did change the nature of the relationship between the UK and US (among many others), but not in the way many people think, and often, not for the reason they think it either.