http://www.guardian.co.uk/law/2011/jun/17/student-file-sharing-tvshack-extradition
Student who ran file sharing site TVShack could
face extradition to US
Richard O'Dwyer may face jail for
copyright infringement in case echoing that of Gary McKinnon
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Peter
Walker
guardian.co.uk, Friday 17 June
2011 14.49 EDT
Article history
Richard O'Dwyer's website TVShack gave links to other sites
that offered pirated downloads. He faces extradition to the US.
Photograph: Central News
The mother of a British student who is facing
extradition to
the
United States over
alleged copyright offences online has spoken of her anguish that he could
face a possible jail sentence.
In a case carrying echoes of that of
Gary
McKinnon, the computer hacker who has spent years fighting US
extradition, 23-year-old undergraduate Richard O'Dwyer was arrested late
last month at the request of the US immigration and customs enforcement
department.
Until last year, when police and US officials first visited him at his
student accommodation in Sheffield, O'Dwyer ran a website called TVShack
which provided links to other sites where users could download pirated
versions of films and television shows. He appeared before magistrates in
the capital this week for a preliminary hearing into the planned
extradition, which he is fighting.
The case seemed "beyond belief", said O'Dwyer's mother, Julia,
from Chesterfield. "The first he knew about it was this visit from
the police and the American officials in November," she said.
"He shut the website down the very next day and I don't think he
expected it to go this far. But then in May he even had to spend a night
in Wandsworth prison as the court was too slow for us to sort out his
passport and bail.
"Richard's still studying in Sheffield. He's doing his best not to
think about it. But it's a real strain for the family. I wake up every
morning and think about it. What we can do? I'm no expert but I've read
the extradition treaty from cover to cover."
It is the UK's 2003 extradition agreement with the US, campaigners say,
which is at the centre of the problem. Much criticised in the case of
McKinnon, it currently contains no provision for what is known legally as
forum, which would allow a UK judge to consider whether a case is best
heard in the UK or abroad.
O'Dwyer's mother says she is baffled why a case with no direct links to
the US – her son last went there aged five – should be heard in the US.
Her lawyers agree.
"The (computer) server was not based in the US at all,"
O'Dwyer's barrister, Ben Cooper, who has also been heavily involved in
the McKinnon case, told Tuesday's hearing at Westminster magistrates
court. "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."
Some experts on digital law question whether providing links to illegal
downloads rather than directly hosting them would even constitute an
offence in the UK. In February last year charges involving fraud and
copyright against a similar site, TV-Links, were dismissed after a judge
ruled that linking alone was not illegal.
"If it's an offence under UK law, then it has to be prosecuted and
tested under UK law," said James Firth of the Open Digital Policy
Organisation thinktank. "If there is no offence under UK law, then
there is no 'victim' to copyright infringement and no case for
extradition."
Civil liberties groups have also questioned why the government has not
swiftly amended the extradition law by enacting a pre-existing but
dormant forum clause, given that both coalition parties were heavily
critical of it while in opposition. In September last year the home
secretary, Theresa May, instead ordered a wider, year-long review of all
extradition laws.
"The government hasn't acted in time. This is exactly what we warned
against," said Isabella Sankey, director of policy for 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."
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