Richard O'Dwyer
Encyclopedia
Richard O'Dwyer is a UK student for which the US Justice Department has requested extradition in May 2011 under the 2003 US-UK Extradition Treaty in relation to alleged copyright infringement
. The Southern District Court in New York has charged Richard O'Dwyer in relation to links on TVShack.net with conspiracy to commit copyright infringement and criminal infringement of copyright. Each charge carries a maximum sentence of five years. Richard O'Dwyer lawyers oppose extradition and argue that any criminal prosecution should brought in the UK, as TVShack was not hosted on American servers. The extradition hearing is scheduled for the 12 September.
in relation to TVShack.net. The two charges, conspiracy to commit copyright infringement and criminal infringement of copyright, each carry a maximum sentence of five years.
. On the 14 June 2011 Richard O'Dwyer appeared before the Westminster magistrates court for a preliminary hearing for the extradition request. Richard O'Dwyer's barrister opposed extradition and argued that any criminal prosecution should brought in the UK, as TVShack was not hosted on American servers. The hearing for the extradition is scheduled for the 12 September.
in November 2010.
. Assistant United States Attorneys Thomas G.A. Brown, Rebecca Rohr, Joseph Facciponti, Jason Hernandez, and Michael Ferrara, were in charge of the investigation. At the time Kevin Suh, Vice President of Content Protection for the Motion Picture Association of America
(MPAA) said the domain seizure was the “largest takedown of illegal movie and television websites in a single action by the federal government.”
UK citizens should not be subject to different legal standards on copyright infringement. Calling the extradition request for Richard O'Dwyer "absurd" the Open Rights Group warned that lacking certainty about jurisdiction is "potentially opening an individual to dozens of prosecutions" for copyright infringement. According to Iain Connor from Pinsent Masons
the 2003 US-UK Extradition Treaty allows either country to surrender a criminal suspect for extradition if the alleged crime carries a minimum sentence of one year prison. According to Connor "It appears that US copyright owners are seeking to rely on the Extradition Act and the US case law to secure a prosecution for the authorisation of copyright infringement by the provision of links to infringing content." He observed that "US companies are likely to try and secure a conviction in the US where they know that they could succeed on the basis of an offence of authorising copyright infringement," and that in the UK "the only case where this was looked at was the 'TV-links' case where, based on the criminal burden of proof which requires the person to be found guilty beyond all reasonable doubt rather than the civil burden of proof on the balance of probability, it had proved unsuccessful." In February 2010 charges for fraud and copyright infringement in relation to the website TV-Links were dismissed by a UK court which ruled that linking alone did not amount to copyright infringement.
. When in opposition the Conservatives
and Liberal Democrats
had criticised the Extradition Act 2003 and in September 2010 Home Secretary Theresa May
ordered a year-long review of all extradition laws.
In relation to the extradition request for Richard O'Dwyer, and concerns over whether the US is the appropriate forum, civil liberties groups have questioned why the government has not swiftly amended the Extradition Act 2003
, which enacts the 2003 US-UK Extradition Treaty in UK law, to enact the forum clause of the Treaty. According to Liberty
"Enacting the forum amendment would have been quite simple. It's not that we're arguing that in every case where activity has taken place here we shouldn't allow people to be extradited. But we should at least be leaving our judges some discretion to look at the circumstances." According to Liberty the forum clause would allow UK courts to "bar extradition in the interests of justice where conduct leading to an alleged offence has quite clearly taken place on British soil."
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
. The Southern District Court in New York has charged Richard O'Dwyer in relation to links on TVShack.net with conspiracy to commit copyright infringement and criminal infringement of copyright. Each charge carries a maximum sentence of five years. Richard O'Dwyer lawyers oppose extradition and argue that any criminal prosecution should brought in the UK, as TVShack was not hosted on American servers. The extradition hearing is scheduled for the 12 September.
Extradition request and charges
In May 2011 the US Justice Department, through the London US embassy, requested for Richard O'Dwyer to be extradited to the US under the 2003 US-UK Extradition Treaty. The extradition request follows the Southern District Court in New York bringing two charges against Richard O'Dwyer for criminal copyright infringementCopyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
in relation to TVShack.net. The two charges, conspiracy to commit copyright infringement and criminal infringement of copyright, each carry a maximum sentence of five years.
Extradition process
When the extradition request was made in May 2011 Richard O'Dwyer spent one night in Wandsworth prison before arrangements were made for bailBail
Traditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail...
. On the 14 June 2011 Richard O'Dwyer appeared before the Westminster magistrates court for a preliminary hearing for the extradition request. Richard O'Dwyer's barrister opposed extradition and argued that any criminal prosecution should brought in the UK, as TVShack was not hosted on American servers. The hearing for the extradition is scheduled for the 12 September.
TVShack
Richard O'Dwyer was reportedly the administrator of the website TVShack, via the domain names TVShack.net and TVShack.cc. According to the Manhattan US Attorney Office TVShack was a "linking websites", providing "access or links to other websites where pirated movies and television programs are stored." Richard O'Dwyer reportedly shut down TVShack the day he was visited by UK police at his student accommodation in SheffieldSheffield
Sheffield is a city and metropolitan borough of South Yorkshire, England. Its name derives from the River Sheaf, which runs through the city. Historically a part of the West Riding of Yorkshire, and with some of its southern suburbs annexed from Derbyshire, the city has grown from its largely...
in November 2010.
Domain seizure of TVShack.net
On the 30 June 2010 US Immigration and Customs Enforcement (ICE) officials seized the domains TVshack.net, Movies-Links.tv, FilesPump.com, Now-Movies.com, PlanetMoviez.com, ThePirateCity.org and ZML.com for "violations of Federal criminal copyright infringement laws". The Manhattan Federal Court issued warrants for seizure of the seven domain names following a request by the US Attorney for the Southern District of New York. The Manhattan US Attorney Office alleged that the seven websites engaged in "criminal copyright infringement" and were "involved in the illegal distribution of copyrighted movies and television programs over the Internet". TVShack, along with five other websites, was described as "linking websites", providing "access or links to other websites where pirated movies and television programs are stored". The seventh website, ZML.COM was described as a "cyberlocker". The domain seizures was undertaken by the Complex Frauds and Asset Forfeiture Unit of the ICE in partnership with the National Intellectual Property Rights Coordination CenterNational Intellectual Property Rights Coordination Center
The National Intellectual Property Rights Coordination Center is a U.S. government center overseen by U.S. Immigration and Customs Enforcement, a component of the U.S. Department of Homeland Security. The NIPRCC coordinates the U.S. government’s enforcement of intellectual property laws.The NIPRCC...
. Assistant United States Attorneys Thomas G.A. Brown, Rebecca Rohr, Joseph Facciponti, Jason Hernandez, and Michael Ferrara, were in charge of the investigation. At the time Kevin Suh, Vice President of Content Protection for the Motion Picture Association of America
Motion Picture Association of America
The Motion Picture Association of America, Inc. , originally the Motion Picture Producers and Distributors of America , was founded in 1922 and is designed to advance the business interests of its members...
(MPAA) said the domain seizure was the “largest takedown of illegal movie and television websites in a single action by the federal government.”
Copyright infringement
According to the Open Rights GroupOpen Rights Group
The Open Rights Group is a UK-based organisation that works to preserve digital rights and freedoms by campaigning on digital rights issues, acting as a media clearinghouse service putting journalists in touch with experts, and by fostering a community of grassroots activists...
UK citizens should not be subject to different legal standards on copyright infringement. Calling the extradition request for Richard O'Dwyer "absurd" the Open Rights Group warned that lacking certainty about jurisdiction is "potentially opening an individual to dozens of prosecutions" for copyright infringement. According to Iain Connor from Pinsent Masons
Pinsent Masons
Pinsent Masons LLP is a full-service commercial law firm. The firm ranks amongst the top 20 law firms in the United Kingdom.Pinsent Masons LLP has over 300 partners, a total legal team of around 1000 and more than 1,500 staff...
the 2003 US-UK Extradition Treaty allows either country to surrender a criminal suspect for extradition if the alleged crime carries a minimum sentence of one year prison. According to Connor "It appears that US copyright owners are seeking to rely on the Extradition Act and the US case law to secure a prosecution for the authorisation of copyright infringement by the provision of links to infringing content." He observed that "US companies are likely to try and secure a conviction in the US where they know that they could succeed on the basis of an offence of authorising copyright infringement," and that in the UK "the only case where this was looked at was the 'TV-links' case where, based on the criminal burden of proof which requires the person to be found guilty beyond all reasonable doubt rather than the civil burden of proof on the balance of probability, it had proved unsuccessful." In February 2010 charges for fraud and copyright infringement in relation to the website TV-Links were dismissed by a UK court which ruled that linking alone did not amount to copyright infringement.
Jurisdiction
In June 2011 Richard O'Dwyer's mother said she is "baffled" why a case with no direct links to the US should be heard in the US. Mrs O’Dwyer argued that “if Richard has done something wrong it is right it is dealt with,” but that "it doesn’t seem right that Richard, who hasn’t been to America since he was five years old, should be taken there. No one would be able to visit him and he could be waiting in prison for a couple of years before his case is even heard. He should be tried here.” At the preliminary hearing for the extradition request Richard O'Dwyer's Barrister Ben Cooper argued that "the server was not based in the US at all", and that "Mr O'Dwyer did not have copyrighted material on his website; he simply provided a link. The essential contention is that the correct forum for this trial is in fact here in Britain, where he was at all times."2003 US-UK Extradition Treaty
The 2003 US-UK Extradition Treaty allows for suspects to be extradited to the US without UK courts considering the evidence, while UK prosecutors have to submit their evidence to US courts when making an extradition request. The Treaty was previously heavely criticised in relation to the extradition request for Gary McKinnonGary McKinnon
Gary McKinnon is a Scottish systems administrator and hacker who has been accused of what one U.S. prosecutor claims is the "biggest military computer hack of all time," although McKinnon himself states that he was merely looking for evidence of free energy suppression and a cover-up of UFO...
. When in opposition the Conservatives
Conservative Party (UK)
The Conservative Party, formally the Conservative and Unionist Party, is a centre-right political party in the United Kingdom that adheres to the philosophies of conservatism and British unionism. It is the largest political party in the UK, and is currently the largest single party in the House...
and Liberal Democrats
Liberal Democrats
The Liberal Democrats are a social liberal political party in the United Kingdom which supports constitutional and electoral reform, progressive taxation, wealth taxation, human rights laws, cultural liberalism, banking reform and civil liberties .The party was formed in 1988 by a merger of the...
had criticised the Extradition Act 2003 and in September 2010 Home Secretary Theresa May
Theresa May
Theresa Mary May is a British Conservative politician who is Home Secretary in the Conservative – Liberal Democrat Coalition government. She was elected to Parliament in 1997 as the Member of Parliament for Maidenhead, and served as the Chairman of the Conservative Party, 2003–04...
ordered a year-long review of all extradition laws.
In relation to the extradition request for Richard O'Dwyer, and concerns over whether the US is the appropriate forum, civil liberties groups have questioned why the government has not swiftly amended the Extradition Act 2003
Extradition Act 2003
The Extradition Act 2003 is an Act of the Parliament of the United Kingdom. It came into force on 1 January 2004 and all import and export extradition requests submitted or received from this date are covered by the Act...
, which enacts the 2003 US-UK Extradition Treaty in UK law, to enact the forum clause of the Treaty. According to Liberty
Liberty (pressure group)
Liberty is a pressure group based in the United Kingdom. Its formal name is the National Council for Civil Liberties . Founded in 1934 by Ronald Kidd and Sylvia Crowther-Smith , the group campaigns to protect civil liberties and promote human rights...
"Enacting the forum amendment would have been quite simple. It's not that we're arguing that in every case where activity has taken place here we shouldn't allow people to be extradited. But we should at least be leaving our judges some discretion to look at the circumstances." According to Liberty the forum clause would allow UK courts to "bar extradition in the interests of justice where conduct leading to an alleged offence has quite clearly taken place on British soil."