Things you'd want to know before forming an opinion of what happened here:
* The guy is alleged to have made over $230,000 (a sum that the US says has been tracked), and himself admits to making 15,000GBP per month(!) from the site.
* After having his domain (TVShack.net) seized in 2010, before the extradition request, he registered "TVShack.cc" and set the site back up (with a cute "Fuck the Police" banner). It's hard to know whether he'd have been extradited if he'd have just shut the thing down.
* Criminal copyright infringement does in fact exist in the UK, as does contributory infringement; the key element that establishes criminal infringement is "intent to profit", which has been clearly established. The guy made a lucrative business brokering pirated movies.
* The UK has a "common carrier" statute (there termed "mere conduit", which, more poetic, innit?) which the defendant lost claim to by (a) exercising control over who could post what videos to his site and (b) idiotically posting copy on his website about how people were "saving money" by watching movies through his site instead of at the theater.
It's easy to believe that lots of people have gotten innocently tangled up in legal nonsense because of the chaos and (perhaps) overreach in copyright enforcement. This doesn't look like one of those people.
There wouldn't be nearly as much outrage if he were merely being prosecuted in the UK, which as you demonstrate, is entirely feasible. If the UK has criminal laws banning offensive free speech (and from what I know of the UK, they probably do), and a UK citizen posts 'Fuck Muhammad' specifically directed at Arabic countries, he should not be extradited to said countries to be tried for blasphemy.
First, I am happy that the US does not have laws against offensive speech.
Second: your analogy is imperfect. The defendant isn't charged with violating a UK/US law in the UK. He's charged with violating it in the US. Two sets of judges apparently considered the jurisdictional issue here and both concluded that the harm alleged occurred in the United States, and that O'Dwyer should therefore be tried in the United States.
The analogy is better than that. If the location a crime occurs is determined by where the browser is at, the reading "F*ck Muhamad" in an Arab country should make you subject to their laws. Even if it's only on .sa domains (if the US can claim jurisdiction over .com, certainly Saudi Arabia can claim it over .sa), that is a hugely dangerous precedent.
I would not be complaining about extradition to Sweden, since that is where their business was located, but citizens of the world should not be subject to the capricious laws of the United States, just because they went online.
The "capricious law" you're referring to here is nearly identical in the UK.
Personally, the "offensive speech" argument 'mindslight brought up doesn't so much make me question extradition so much as it disquiets me about the idea of "offensive speech" laws. You can't be extradited from the US for saying "Fuck $RELIGOUS_FIGURE" because saying "Fuck $RELIGIOUS_FIGURE" simply isn't a crime here. We got that one right; the UK got it wrong.
Note that UK laws restricting speech have been fig leaves for other politically-motivated legal proceedings; people in the UK have tried (and failed) to exploit the UK's libel laws to punish US speech they disagreed with.
It is not particularly controversial in either the US or UK legislatures that running a 6 figure business on pirated first-run movies shouldn't be legal. I realize that it's controversial on message boards, but a lot of things are controversial on message boards that turn out not to be in the "big room". It was also controversial on Hacker News and Reddit that Hans Reiser was convicted on "circumstantial evidence".
For the record, when I refer to capricious laws, I'm discussing from the viewpoint of people outside the US who, even though they may be doing things legally in their country, are suddenly at the whim of the US government.
Certainly, O'Dwyer should be subject to UK laws. I have no problem with his arrest. I have a problem with his extradition, which, given he could be prosecuted at home, one can only guess is happening because the penalties are so much more severe in the US. Why take an ounce of flesh when you can get a pound...and show the world which government is really in charge.
The UK signed a treaty with the US and something like 50 other countries that requires them to extradite under these circumstances. Because the law broken exists both in the foreign country and domestically, and because the evidence behind the crime is clear, there isn't even a fig leaf of a justification for not extraditing; to not extradite, they would have to break their own extradition treaty.
Frankly, I think the core of this argument is that you and I disagree about the legitimacy of the underlying law. There's nothing wrong with that disagreement. You're entitled to the opinion that criminal charges for commercial violation of copyright are wrong, idiotic, &c. But what I'm commenting about has nothing to do with the actual law; I'm just saying, this doesn't appear to be a process abuse.
Fun fact: we had an argument about the US "bullying" the UK over extradition about a year ago, in the McKinnon case. At issue: a "controversial" renegotiation of the extradition treaty between the US and UK that lowered the evidentiary standard for extradition to the US. A few minute's Google research showed the bullying was exactly in the opposite direction --- that prior to the treaty renegotiation, the evidentiary standard for extradition to the US was extreme and far stricter than that of extradition to the UK.
Additional fun fact: O'Dwyer has superior due process protections in the US than he does in the UK.
I'm not sure what you're trying to say here, but O'Dwyer can't be tried in a military court, and neither O'Dwyer nor Manning can be coerced into testifying against themselves (unlike in the UK system, which does penalize defendants for not testifying).
This is one of those arguments like "yeah well tell that to the people at Gitmo" that seems like it must have much more moral force to the person making the argument than to anyone hearing it. The US government is not systematically depriving fraud suspects of due process rights.
> The US government is not systematically depriving fraud suspects of due process rights.
No, only in cases where someone having those rights would be a nuisance to the US government.
Manning has been tortured by your government for a long time now, purely because they wanted to make an example out of him. Is that alright?
Basically, if you don't have due process rights whenever the US government unilaterally decides that you don't, then what exactly do the rights matter? Are they even rights anymore?
> alleged occurred in the United States, and that O'Dwyer should therefore be tried in the United States.
It occurred on the internet, so it occurred everywhere, not just in the US or the UK, but in every place that accessed the internet. I see no more reason that he ought to be subject to US law than that web programmer ought to be subject to Iranian law.
There is great danger in making us subject to every country's law, which is what this effectively does. Sure, they did it because the sentence is much harsher in the US, but that doesn't make things better.
Or let me put this another way: if the US forces Canada to pass strong anti-circumvention laws (note: they have been lobbying for such) and those happen to somehow criminalize security research that you did, would you be happy to get shipped off to a foreign country over it?
I can't be shipped to a foreign country for circumventing copy protection because I don't do it commercially and do it exclusively for interoperability and security research, which are exceptions to the anti-circumvention laws we have in the US.
On the other hand, Canadians for years flaunted a loophole in Canadian/US law to sell DirecTV circumvention hardware to US customers. Message board geeks the world over said, "those are just signals traveling through the air! Signals traveling through the air can't be anyone's property!" I guess I have a hard time arguing with that point, but I don't lose sleep over not taking those people seriously.
Reminder: we're discussing a guy who made six figures running a website specifically designed and intended to get people to pirated first-run movies. Sorry, but the distinction between "links" and "actual media frames" is not an important one in UK law or US law. Nobody is being extradited for links on their Tumblr pages.
Those are only exceptions in the US. The USTR has been pushing other countries to make their laws even stronger than ours. Then they do the two-step and push to strengthen our laws to match.
Please note that I'm not arguing that this is some kind of abuse of process. If anything, I'm worried because it's perfectly normal and that will make reform that much more difficult.
If it could be showed that most of the harm had occurred in Saudi Arabia and the conduct was also criminal in the UK, then it would be very similar to this case (such an extradition would be blocked for other reasons, but the question of forum is essentially the same).
It's likely that he would be found innocent if tried in the UK, which is why people are quite angry about it. No successful prosecutions have ever been brought in the UK in similar cases and the CPS wasn't going to prosecute him here.
In my analogy, the majority of harm (and intended harm) also occurs in the Arabic countries - outrage, unrest, mental anguish.
Of course a judge came up with legal justification, otherwise there would be no extradition. That justification just happens to be dead wrong for the sake of convenience.
That wasn't intended to be a well-formed argument, but okay, I edited and removed 'political' - the judge may indeed have been personally looking for the best way to assure punishment.
But make no mistake, courts gradually widen the concept of jurisdiction out of convenience. A court inherently assumes that it will always reach the correct decision, so choosing to decide on an issue causes it little philosophical burden (meanwhile, saying that one's self is irrelevant to a situation requires some pretty well thought out framing and justification). As a result, another unlucky sap is put through agony - even if they end up prevailing years later.
If this was some random guy who poked at a website, found SQL injection, told the company, and then the company looked at the logs and found out that the guy had dumped their whole database (in the course of seeing whether the SQLI actually worked) and had the guy prosecuted for the equivalent of felony computer fraud or misuse, I'd sympathize.
That actually happened. This actually happened too. What happened here is not so sympathetic. If you pull down 6 figures off pirated first-run movies and get an ICE site takedown, maybe not so much with the "putting the exact site back up on a different TLD with a fuck-you to the police on it", eh?
Sympathetic? Not so much. But when a future plaintiff is looking to cite precedent, most likely their court isn't going to say "In that previous case, that guy was obviously guilty of something, so that decision was possibly made out of expedience and we're not going to use it".
In fact, I'll go out on a limb and argue that a majority of rule-of-law-preserving precedents must be made when the defendant is/appears guilty - for if they appeared innocent, a court would probably find this by easier means rather than spending much effort nitpicking the procedural issues!
The problem is we have repeatedly had spineless and useless knee jerk Home Secretaries and Teresa May sadly is no different. If the US asks us to jump we merely ask "how high" and sell out our citizens rights.
The UK has a "common carrier" statute (there termed "mere conduit", which, more poetic, innit?) which the defendant lost claim to by (a) exercising control over who could post what videos to his site and (b) idiotically posting copy on his website about how people were "saving money" by watching movies through his site instead of at the theater.
That is a major point of contention.
The prosecution argued the "mere conduit" exemption does not apply because O'Dwyer "was intimately involved in deciding who was allowed to post links on the TVShack websites, which links would be posted [...]" but it is not immediately clear that by doing so he forfeited the exemption.
The applicability of the exemption hinges on the interpretation of "transmission", for example. In a case such as this, who initiates the transmission of copyright infringing material? Is it the cyberlocker service that hosts the copyrighted files? Is it the link aggregator site like TVShack that links to the cyberlocker service? Is it the search engine that links to TVShack that links to the cyberlocker service? You see where I'm going here.
Nor is it immediately clear that by selecting who could post links on the site, O'Dwyer forfeited the exemption. The regulation states a service provider is exempt if (amongst other requirements) it "did not select or modify the information contained in the transmission"
Does selecting posters of links to transmissions constitute selecting information contained in the transmission?
I don't know about the UK, but yes, selecting posters of links does potentially forfeit common carrier in the US (the law is not source code, so none of this is black/white; it depends on the circumstances).
But in this case, two points bear mentioning: first, there's more evidence about his intent to profit from copyright infringement than the manner in which he ran his site, and second, it kind of insults one's intelligence to suggest that TVShack was an innocent mistake. He was "informed" of this in 2010, when his domain was seized. Presumably, the money was too good for him not to start up again.
So? Most of the comments I have read don't dispute the fact that he (may) have committed crimes against UK and/or US laws.
The problem is that the UK allows extradition of its own citizens.
Of course this is a more general problem than just "copyright" and involves the fact that the UK let itself become some kind of colony of the US (ironically).
If an American college student displayed a banner on his website saying "Fuck Iran" (and you don't have to look too far to find such things: http://www.youtube.com/watch?v=2MiedE1CY9I) would you consider it ok to send him to Iran to be tried there?
- - -
Additionally, according to the ruling, he did not exactly provide a "cute 'Fuck the Police' banner"; it was a quote from someone else's work:
> Also posted on the homepage of this new website was the photograph of a rap music group and the title OF ONE OF THEIR SONGS “Fxck the Police” (capitalization mine).
And this is not even what the ruling says; the ruling is quoting the complaint produced by the U.S. Attorney’s Office for the Southern District of New York.
What you have listed in the parent is NOT what the defendant did; they're just allegations from the prosecution, produced in order to obtain his extradition.
The US, thanks to the NET Act, has an all-encompassing definition of "profit" though. But if he was making all that money, it's not really a stretch to establish it in either jurisdiction.
All the more reason that the UK should have been the one to prosecute.
I, for once, would like to know how he managed to make that kind of income on a side-project. Perhaps up to some extent it can be applied to less "criminal" (if his was criminal) project.
http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgment...
Things you'd want to know before forming an opinion of what happened here:
* The guy is alleged to have made over $230,000 (a sum that the US says has been tracked), and himself admits to making 15,000GBP per month(!) from the site.
* After having his domain (TVShack.net) seized in 2010, before the extradition request, he registered "TVShack.cc" and set the site back up (with a cute "Fuck the Police" banner). It's hard to know whether he'd have been extradited if he'd have just shut the thing down.
* Criminal copyright infringement does in fact exist in the UK, as does contributory infringement; the key element that establishes criminal infringement is "intent to profit", which has been clearly established. The guy made a lucrative business brokering pirated movies.
* The UK has a "common carrier" statute (there termed "mere conduit", which, more poetic, innit?) which the defendant lost claim to by (a) exercising control over who could post what videos to his site and (b) idiotically posting copy on his website about how people were "saving money" by watching movies through his site instead of at the theater.
It's easy to believe that lots of people have gotten innocently tangled up in legal nonsense because of the chaos and (perhaps) overreach in copyright enforcement. This doesn't look like one of those people.