Fishing Across the Pond

Earlier this year, the Westminster Magistrates’ Court found that a young British student could be extradited to the United States to face allegations of copyright infringement. The United States Justice Department requested that he be extradited under the Extradiction Act, 2003 and the US-UK Extradition Treaty.

The student, Richard O’Dwyer, is a 23 year old British citizen who ran a small website, TVShack.net, which allowed visitors to the site to access videos located on third party servers. Notably, unlike a cyber-locker such as Megaupload, TVShack did not actually host any files for streaming or downloads but only acted as a directory of sorts to websites that did. TVShack was also a relatively small operation – with approximately 185,500 page views a month, dwarfed in comparison with the 20 million users of The Pirate Bay. The website did not charge its users but rather generated an income stream through the display of advertisements, apparently earning in the range of £15,000 per month.

In his defence, Mr. O’Dwyer’s counsel raised three main arguments; namely that: (1) the complaints did not reach a dual criminality requirement; (2) it would be unjust or oppressive due to the passage of time; and (3), it would be disproportionate to order extradition and it would in breach of his human rights. District Judge Quentin Purdy rejected all three arguments raised by the defendant’s counsel.

With respect to argument (1), he found that it would also be an offence under UK criminal law, and noted that a provision in the Electronic Commerce Regulations 2002 (S.I. 2002 No 2013) that would exempt the criminal penalties for “mere conduits” did not apply in this case. The Judge noted that regardless of the fact that no recordings were actually stored on the website, Mr. O’Dwyer acted as more than a “mere conduit” given his level of control over the website, lack of attempts to prevent copyright, and the existence of a sign up / vetting procedure for users to use TVShack. This must be noted in light of the TV-Links copyright infringement case, where TV-Links was able to successfully argue this defence.

With respect to argument, (2), the Judge found that enforcement of criminal justice operates across borders, the evidence is still available and current. With respect to argument (3), he found that the defendant’s convention rights would be safeguarded to the Court’s satisfaction if on trial in the United States.

Regarding the outcome of this case, there have been several concerns raised by several civil liberty groups about the 2003 US-UK Extradition treaty: it does not provide any provision for judges to consider whether the forum is appropriate in the circumstances. In this situation, this could have been an argument worth considering – the servers were not located in the US, Mr. O’Dwyer has not been in the United States since he was five years old and it appears that the only link was that the infringement was with regards to copyrighted materials owned by from companies in the United States. In this situation, it may have been better to have heard the case in the UK courts instead.

Mr. O’Dwyer has initiated an appeal to this decision.

Brian Chau is a JD Candidate at Osgoode Hall Law School.