By Timothy B. Lee | Published about 4 hours ago
As major American copyright holders continue their long war on file-sharing, the focus of the debate has increasingly shifted overseas. Immigrations and Customs Enforcement (ICE) has begun seizing the domain names of so-called rogue sites based overseas. And copyright interests are pushing for the passage of the PROTECT IP Act, which would draft various intermediaries, including DNS providers, into the fight against such sites.
In May, American law enforcement officials opened up yet another front in this war by seeking the extradition of Richard O'Dwyer. The 23-year-old British college student is currently working on his BS in interactive media and animation. Until last year, he ran a "link site" that helped users find free movies and TV shows, many of them infringing. American officials want to try him on charges of criminal copyright infringement and conspiracy.
The extradition request is remarkable; O'Dwyer has no obvious connection to the United States. He hasn't set foot there since he was a small child, his servers were not located there, and it's not clear he has broken UK law. With his family's support, O'Dwyer is fighting extradition and seeking a trial in the United Kingdom instead.
The case is likely to become a new focal point in the ongoing global debate—one that exploded in the 1990s among legal scholars and has been raging ever since—over who has jurisdiction to try crimes committed wholly online. Extradition is normally reserved for the most serious crimes; critics doubt that operating a linking site qualifies. If O'Dwyer is extradited to the United States, it could set the precedent that website operators around the world are obligated to comply with American laws, even if they differ from the laws in their own country. If they don't, they could face US justice.
We recently covered the legal battle over Hotfile, an online "cyberlocker" site that Hollywood studios have accused of facilitating massive illegal downloading of their movies. In their complaint, the studios said that Hotfile relies on "link sites" to "host, organize, and promote URL links" to its content.
O'Dwyer's site, TVshack, was allegedly such a link site. It served as a clearinghouse for users to share links to movies and television shows available for free—but not necessarily legal—download. It's no longer online, but cached copies suggest that most of the links were to Hollywood content like Toy Story 3, Transformers: Revenge of the Fallen, and episodes of "Family Guy." Needless to say, these copies weren't authorized by the relevant copyright holders.
It was a profitable venture. As TVshack's traffic grew, O'Dwyer began selling advertising space on the site. Richard's mother Julia told Ars that she first became concerned when she learned how much money her son was making. "It was apparent that this income was becoming bigger and bigger," she said. "He wasn't that interested in generating an income, and I think he was getting a bit frightened."
A knock on the door
In late June 2010, the TVshack.net domain name was seized in a virtual sting by US Immigration and Customs Enforcement (ICE), a move made possible by the fact that all .com and .net domain names are registered through US companies. As usual, ICE redirected the TVshack domain to a banner indicating the domain name had been seized by the federal government. (ICE has previously noted that most of these requests for takedowns come from industry, and it works closely with groups like the MPAA.)
O'Dwyer didn't back down. Within days, he had the site back up at a new address, TVShack.cc, which did not require a US-based domain name registrar. He slapped a notice to the top of the new site urging users to update their bookmarks.
The feds were not amused. In November 2010, British police showed up at O'Dwyer's house. Julia told Ars what happened next.
"They had two American guys with them, which Richard assumes were men from ICE," she said. "They questioned him about his website. It wasn't more than an hour." The police also seized two of Richard's computers.
"The ICE men shook his hand when they left," she said. "One of them said 'Don't worry, you won't have to go to America.'"
Julia says the men didn't ask him to take TVShack down, but he closed it himself. Nevertheless, the TVShack.cc domain was also (eventually) seized by ICE.
"A big shock"
Richard was asked to report to his local police station on May 23, 2011. "We got him a lawyer, and I arranged to go with him to the police station," Julia said. "We thought that he was going to either be charged with an offense in the UK or to be further questioned."
Instead, the O'Dwyers learned that the British investigation had been dropped. Instead, the US had requested Richard's extradition. "That was a big shock," Julia said. "Obviously, that had never entered our heads, that that's what would be happening on that day—or any other day, for that matter."
"I can't see how they can say that there is a connection" to the United States, she added. "He had no servers in America. He was never in America since he was 5 years old. It just seems like ICE are trying to make the rules to suit them."
Forcing Richard to stand trial in the United States would be a severe hardship for his family, Julia said. "It will cost £1500 at least to have a trip to America. And then you go all that way for an hour's visiting time in jail. It seems ridiculous. The threat of being extradited is like an extra punishment that you're given before you even get to any charges."
The rarity of extradition
So why is Richard being taken to America rather than being allowed to stand trial in the UK? The American law enforcement agencies behind the extradition request declined to comment on the case when we asked. But Erik Barnett, an assistant deputy director for ICE, has told the Guardian that the United States regards any website with a US-controlled domain like .net to be within its jurisdiction. Until now, ICE's campaign against these websites has been focused on domain name seizures, but O'Dwyer's case may represent the first escalation of that campaign to include the extradition of website owners.
The effort to extradite Richard is almost unprecedented. We could only find two examples of individuals extradited to the United States for computer crimes committed without ever setting foot here.
One of them, Gary McKinnon, was a UK citizen who was accused of hacking into Pentagon and NASA computer systems—a case which therefore had a much clearer US nexus. At last report, he was still in the UK fighting extradition. The other example is Australian resident Hew Griffiths, who was sent to the United States on warez charges in 2007 after a 3-year extradition fight. He served a total of 51 months in jail for his leadership role in the software cracking group DrinkOrDie.
Richard's mother also points to the case of Ryan Cleary, a 19-year-old Brit who was arrested in June 2011 for his alleged role in the LulzSec hacker group. "I wouldn't suggest that he should be extradited, because I wouldn't wish that on anyone," she said. But she noted that LulzSec has attacked numerous American targets, including the CIA. She wondered why her son is being extradited while Cleary is apparently being allowed to stand trial in the UK despite a much more direct connection to the United States.
The legality of linking
It's not clear whether O'Dwyer has even committed a crime under UK law. O'Dwyer is not accused of hosting infringing content himself. Instead, his site provided links to content hosted by other websites. In December, a British judge ruled in favor of TV-Links, a website that, like Tvshack, offered links to video content, some of it infringing.
What about the United States? Ars asked Daniel Gervais, a law professor at Vanderbilt, for comment. He pointed to the Supreme Court's 2005 Grokster decision, under which defendants can be held liable for "inducing" their users to infringe copyright. He said that if O'Dwyer was "linking multiple times to content that is entirely or almost essentially infringing," which it appears he was, then O'Dwyer likely faces "secondary liability" under copyright law.
However, he said, "it is so unusual to have this prosecuted under criminal statutes. Criminal copyright infringement is extremely rare. Typically we'd be looking at people who would manufacture or import pirate DVDs."
O'Dwyer's mother said that if Richard were found guilty in the UK, the maximum penalty for his actions would be just two years of prison, compared to five years in the United States.
Britain's lopsided extradition rules
Julia places most of the blame for her son's predicament at the feet of her own government. In 2003, Britain signed what critics regard as a one-sided treaty with the United States. The treaty makes it more difficult to extradite an American citizen to the United Kingdom than the other way round.
The O'Dwyers have a powerful voice on their side; in June, the Parliament's Joint Committee on Human Rights issued a report calling for extradition reforms.
One proposed reform in particular would help Richard's case, a provision allowing a judge to deny extradition requests if the alleged conduct occurred in the UK and "it would not be in the interests of justice" for the defendant to be tried in the requesting country. Language to this effect was included in a 2006 Police and Justice Bill, but to overcome political opposition, it was rendered inactive before final passage.
"Parliament has already agreed to this principle and the Government should bring forward the relevant provisions," the Joint Committee wrote in its June report. "It is difficult to understand why this has not yet happened."
Richard's next court date isn't until September, so there's still time to change the law. "If they just sat down in parliament and changed it, it would be in action within a month," his mother said.
But so far she's been frustrated by the pace of change. "These politicians always say they have no power. Why do we have powerless people running our country?"
The case against extradition
Both experts we spoke with were critical of the American government's move to extradite Richard. Gervais pointed out that the case could have sweeping implications. "Because so many copyright owners are actually US-based companies, it would basically make US courts the world criminal courts for copyright infringement," he said.
And it could be even worse than that. If people can be extradited for copyright infringement by countries in which they haven't set foot, "every website like this could give rise to prosecution in several jurisdictions. It will become impossible for the person to defend without spending millions of dollars."
Corynne McSherry, the Intellectual Property Director at the Electronic Frontier Foundation, agreed. "We should think long and hard about whether IP is something we want to extradite people across borders for," she told Ars.
She pointed to the case of Rojadirecta.org, a Spanish site which had its domain name seized by ICE earlier this year. "Two separate courts found that [the site] was legal" in Spain, she said. "Nonetheless, action was taken in the US. Now imagine if we tried to extradite them to the US. Think about the message that would send about our respect for the other court."
She also warned that the effort could backfire. Imagine "you do something that violates French copyright law," she said. "They don't have a First Amendment. They have a different regime for IP. You'd be worried if French could extradite you and bring you to a French court."
McSherry lays the ultimate blame for ICE's aggressive stance at the feet of domestic content industries. "There is a fair amount of pressure being brought to bear by the content industries and media to 'do something' about online infringement," she said. "I think this is a response to that. The question we need to ask is whether that responsiveness is causing collateral damage to other interests."
Reached by e-mail, the Motion Picture Association of America declined to comment.
Years of debate
The debate over extradition in this case is just one strand of a long-running argument about "borders" and "jurisdiction" on the Internet. Law professors were especially concerned about the question in the mid-1990s, when famous articles like "Law And Borders: The Rise of Law in Cyberspace" by David Post and David Johnson made sweeping statements about the problems of government authority on the "borderless" 'Net.
Efforts to control the flow of electronic information across physical borders—to map local regulation and physical boundaries onto Cyberspace—are likely to prove futile, at least in countries that hope to participate in global commerce. Individual electrons can easily, and without any realistic prospect of detection, "enter" any sovereign's territory. The volume of electronic communications crossing territorial boundaries is just too great in relation to the resources available to government authorities to permit meaningful control.
As for which law to apply, Post and Johnson argued that questions of jurisdiction were a total mess; every law might apply to everyone!
Because events on the Net occur everywhere but nowhere in particular, are engaged in by online personae who are both "real" (possessing reputations, able to perform services, and deploy intellectual assets) and "intangible" (not necessarily or traceably tied to any particular person in the physical sense), and concern "things" (messages, databases, standing relationships) that are not necessarily separated from one another by any physical boundaries, no physical jurisdiction has a more compelling claim than any other to subject these events exclusively to its laws.
"Realists" objected to this view, saying 1) that governments certainly could (and did) create Internet borders and that 2) the jurisdictional questions weren't nearly as complicated as the cyber-libertarians suggested. (Perhaps the best statement of this view came in the 2006 book Who Controls the Internet? by Jack Goldsmith and Tim Wu.)
In his 1998 paper "Against Cyberanarchy," Harvard's Jack Goldsmith noted that the Internet wasn't really a free for all in which any nation could enforce any of its laws against any netizen. Instead, as a practical matter, laws would only be enforced against:
(i) persons with a presence or assets in the nation’s territory; (ii) persons over whom the nation can obtain personal jurisdiction and enforce a default judgment against abroad; or (iii) persons who the nation can successfully extradite.
When someone like O'Dwyer causes an alleged harm in the US but has no assets here and no residence here, the government has generally left such people to the justice of their own governments (unless they have done something to specifically target American users as offshore gambling sites did by, say, accepting money in US dollars). But as the O'Dwyer case suggests, at least one part of the US government sees Goldsmith's third point as a reminder that it's not powerless to reach such people. Instead, it's a call to action: let's start extraditing!
A question of proportion
It's hard to defend Richard O'Dwyer's actions. He appears to have knowingly profited from large-scale copyright infringement, even if he didn't directly host the content. It's not entirely clear if he broke the letter of the law in either the UK or the US, but we can't fault content companies and law enforcement officials for at least pursuing his site.
But the effort to extradite O'Dwyer to the United States seems disproportionate and unfair. O'Dwyer resided in the United Kingdom throughout the time period when he was operating TVshack. Unless there's evidence his actions were specifically directed at the United States—and simply operating a linking site in English or signing up for a .com/.net domain hardly seems like such evidence—any trial against him should occur in the UK. We're confident that there are more urgent uses of US law enforcement and judicial resources.
As major American copyright holders continue their long war on file-sharing, the focus of the debate has increasingly shifted overseas. Immigrations and Customs Enforcement (ICE) has begun seizing the domain names of so-called rogue sites based overseas. And copyright interests are pushing for the passage of the PROTECT IP Act, which would draft various intermediaries, including DNS providers, into the fight against such sites.
In May, American law enforcement officials opened up yet another front in this war by seeking the extradition of Richard O'Dwyer. The 23-year-old British college student is currently working on his BS in interactive media and animation. Until last year, he ran a "link site" that helped users find free movies and TV shows, many of them infringing. American officials want to try him on charges of criminal copyright infringement and conspiracy.
The extradition request is remarkable; O'Dwyer has no obvious connection to the United States. He hasn't set foot there since he was a small child, his servers were not located there, and it's not clear he has broken UK law. With his family's support, O'Dwyer is fighting extradition and seeking a trial in the United Kingdom instead.
The case is likely to become a new focal point in the ongoing global debate—one that exploded in the 1990s among legal scholars and has been raging ever since—over who has jurisdiction to try crimes committed wholly online. Extradition is normally reserved for the most serious crimes; critics doubt that operating a linking site qualifies. If O'Dwyer is extradited to the United States, it could set the precedent that website operators around the world are obligated to comply with American laws, even if they differ from the laws in their own country. If they don't, they could face US justice.
We recently covered the legal battle over Hotfile, an online "cyberlocker" site that Hollywood studios have accused of facilitating massive illegal downloading of their movies. In their complaint, the studios said that Hotfile relies on "link sites" to "host, organize, and promote URL links" to its content.
O'Dwyer's site, TVshack, was allegedly such a link site. It served as a clearinghouse for users to share links to movies and television shows available for free—but not necessarily legal—download. It's no longer online, but cached copies suggest that most of the links were to Hollywood content like Toy Story 3, Transformers: Revenge of the Fallen, and episodes of "Family Guy." Needless to say, these copies weren't authorized by the relevant copyright holders.
It was a profitable venture. As TVshack's traffic grew, O'Dwyer began selling advertising space on the site. Richard's mother Julia told Ars that she first became concerned when she learned how much money her son was making. "It was apparent that this income was becoming bigger and bigger," she said. "He wasn't that interested in generating an income, and I think he was getting a bit frightened."
A knock on the door
In late June 2010, the TVshack.net domain name was seized in a virtual sting by US Immigration and Customs Enforcement (ICE), a move made possible by the fact that all .com and .net domain names are registered through US companies. As usual, ICE redirected the TVshack domain to a banner indicating the domain name had been seized by the federal government. (ICE has previously noted that most of these requests for takedowns come from industry, and it works closely with groups like the MPAA.)
O'Dwyer didn't back down. Within days, he had the site back up at a new address, TVShack.cc, which did not require a US-based domain name registrar. He slapped a notice to the top of the new site urging users to update their bookmarks.
The feds were not amused. In November 2010, British police showed up at O'Dwyer's house. Julia told Ars what happened next.
"They had two American guys with them, which Richard assumes were men from ICE," she said. "They questioned him about his website. It wasn't more than an hour." The police also seized two of Richard's computers.
"The ICE men shook his hand when they left," she said. "One of them said 'Don't worry, you won't have to go to America.'"
Julia says the men didn't ask him to take TVShack down, but he closed it himself. Nevertheless, the TVShack.cc domain was also (eventually) seized by ICE.
"A big shock"
Richard was asked to report to his local police station on May 23, 2011. "We got him a lawyer, and I arranged to go with him to the police station," Julia said. "We thought that he was going to either be charged with an offense in the UK or to be further questioned."
Instead, the O'Dwyers learned that the British investigation had been dropped. Instead, the US had requested Richard's extradition. "That was a big shock," Julia said. "Obviously, that had never entered our heads, that that's what would be happening on that day—or any other day, for that matter."
"I can't see how they can say that there is a connection" to the United States, she added. "He had no servers in America. He was never in America since he was 5 years old. It just seems like ICE are trying to make the rules to suit them."
Forcing Richard to stand trial in the United States would be a severe hardship for his family, Julia said. "It will cost £1500 at least to have a trip to America. And then you go all that way for an hour's visiting time in jail. It seems ridiculous. The threat of being extradited is like an extra punishment that you're given before you even get to any charges."
The rarity of extradition
So why is Richard being taken to America rather than being allowed to stand trial in the UK? The American law enforcement agencies behind the extradition request declined to comment on the case when we asked. But Erik Barnett, an assistant deputy director for ICE, has told the Guardian that the United States regards any website with a US-controlled domain like .net to be within its jurisdiction. Until now, ICE's campaign against these websites has been focused on domain name seizures, but O'Dwyer's case may represent the first escalation of that campaign to include the extradition of website owners.
The effort to extradite Richard is almost unprecedented. We could only find two examples of individuals extradited to the United States for computer crimes committed without ever setting foot here.
One of them, Gary McKinnon, was a UK citizen who was accused of hacking into Pentagon and NASA computer systems—a case which therefore had a much clearer US nexus. At last report, he was still in the UK fighting extradition. The other example is Australian resident Hew Griffiths, who was sent to the United States on warez charges in 2007 after a 3-year extradition fight. He served a total of 51 months in jail for his leadership role in the software cracking group DrinkOrDie.
Richard's mother also points to the case of Ryan Cleary, a 19-year-old Brit who was arrested in June 2011 for his alleged role in the LulzSec hacker group. "I wouldn't suggest that he should be extradited, because I wouldn't wish that on anyone," she said. But she noted that LulzSec has attacked numerous American targets, including the CIA. She wondered why her son is being extradited while Cleary is apparently being allowed to stand trial in the UK despite a much more direct connection to the United States.
The legality of linking
It's not clear whether O'Dwyer has even committed a crime under UK law. O'Dwyer is not accused of hosting infringing content himself. Instead, his site provided links to content hosted by other websites. In December, a British judge ruled in favor of TV-Links, a website that, like Tvshack, offered links to video content, some of it infringing.
What about the United States? Ars asked Daniel Gervais, a law professor at Vanderbilt, for comment. He pointed to the Supreme Court's 2005 Grokster decision, under which defendants can be held liable for "inducing" their users to infringe copyright. He said that if O'Dwyer was "linking multiple times to content that is entirely or almost essentially infringing," which it appears he was, then O'Dwyer likely faces "secondary liability" under copyright law.
However, he said, "it is so unusual to have this prosecuted under criminal statutes. Criminal copyright infringement is extremely rare. Typically we'd be looking at people who would manufacture or import pirate DVDs."
O'Dwyer's mother said that if Richard were found guilty in the UK, the maximum penalty for his actions would be just two years of prison, compared to five years in the United States.
Britain's lopsided extradition rules
Julia places most of the blame for her son's predicament at the feet of her own government. In 2003, Britain signed what critics regard as a one-sided treaty with the United States. The treaty makes it more difficult to extradite an American citizen to the United Kingdom than the other way round.
The O'Dwyers have a powerful voice on their side; in June, the Parliament's Joint Committee on Human Rights issued a report calling for extradition reforms.
One proposed reform in particular would help Richard's case, a provision allowing a judge to deny extradition requests if the alleged conduct occurred in the UK and "it would not be in the interests of justice" for the defendant to be tried in the requesting country. Language to this effect was included in a 2006 Police and Justice Bill, but to overcome political opposition, it was rendered inactive before final passage.
"Parliament has already agreed to this principle and the Government should bring forward the relevant provisions," the Joint Committee wrote in its June report. "It is difficult to understand why this has not yet happened."
Richard's next court date isn't until September, so there's still time to change the law. "If they just sat down in parliament and changed it, it would be in action within a month," his mother said.
But so far she's been frustrated by the pace of change. "These politicians always say they have no power. Why do we have powerless people running our country?"
The case against extradition
Both experts we spoke with were critical of the American government's move to extradite Richard. Gervais pointed out that the case could have sweeping implications. "Because so many copyright owners are actually US-based companies, it would basically make US courts the world criminal courts for copyright infringement," he said.
And it could be even worse than that. If people can be extradited for copyright infringement by countries in which they haven't set foot, "every website like this could give rise to prosecution in several jurisdictions. It will become impossible for the person to defend without spending millions of dollars."
Corynne McSherry, the Intellectual Property Director at the Electronic Frontier Foundation, agreed. "We should think long and hard about whether IP is something we want to extradite people across borders for," she told Ars.
She pointed to the case of Rojadirecta.org, a Spanish site which had its domain name seized by ICE earlier this year. "Two separate courts found that [the site] was legal" in Spain, she said. "Nonetheless, action was taken in the US. Now imagine if we tried to extradite them to the US. Think about the message that would send about our respect for the other court."
She also warned that the effort could backfire. Imagine "you do something that violates French copyright law," she said. "They don't have a First Amendment. They have a different regime for IP. You'd be worried if French could extradite you and bring you to a French court."
McSherry lays the ultimate blame for ICE's aggressive stance at the feet of domestic content industries. "There is a fair amount of pressure being brought to bear by the content industries and media to 'do something' about online infringement," she said. "I think this is a response to that. The question we need to ask is whether that responsiveness is causing collateral damage to other interests."
Reached by e-mail, the Motion Picture Association of America declined to comment.
Years of debate
The debate over extradition in this case is just one strand of a long-running argument about "borders" and "jurisdiction" on the Internet. Law professors were especially concerned about the question in the mid-1990s, when famous articles like "Law And Borders: The Rise of Law in Cyberspace" by David Post and David Johnson made sweeping statements about the problems of government authority on the "borderless" 'Net.
Efforts to control the flow of electronic information across physical borders—to map local regulation and physical boundaries onto Cyberspace—are likely to prove futile, at least in countries that hope to participate in global commerce. Individual electrons can easily, and without any realistic prospect of detection, "enter" any sovereign's territory. The volume of electronic communications crossing territorial boundaries is just too great in relation to the resources available to government authorities to permit meaningful control.
As for which law to apply, Post and Johnson argued that questions of jurisdiction were a total mess; every law might apply to everyone!
Because events on the Net occur everywhere but nowhere in particular, are engaged in by online personae who are both "real" (possessing reputations, able to perform services, and deploy intellectual assets) and "intangible" (not necessarily or traceably tied to any particular person in the physical sense), and concern "things" (messages, databases, standing relationships) that are not necessarily separated from one another by any physical boundaries, no physical jurisdiction has a more compelling claim than any other to subject these events exclusively to its laws.
"Realists" objected to this view, saying 1) that governments certainly could (and did) create Internet borders and that 2) the jurisdictional questions weren't nearly as complicated as the cyber-libertarians suggested. (Perhaps the best statement of this view came in the 2006 book Who Controls the Internet? by Jack Goldsmith and Tim Wu.)
In his 1998 paper "Against Cyberanarchy," Harvard's Jack Goldsmith noted that the Internet wasn't really a free for all in which any nation could enforce any of its laws against any netizen. Instead, as a practical matter, laws would only be enforced against:
(i) persons with a presence or assets in the nation’s territory; (ii) persons over whom the nation can obtain personal jurisdiction and enforce a default judgment against abroad; or (iii) persons who the nation can successfully extradite.
When someone like O'Dwyer causes an alleged harm in the US but has no assets here and no residence here, the government has generally left such people to the justice of their own governments (unless they have done something to specifically target American users as offshore gambling sites did by, say, accepting money in US dollars). But as the O'Dwyer case suggests, at least one part of the US government sees Goldsmith's third point as a reminder that it's not powerless to reach such people. Instead, it's a call to action: let's start extraditing!
A question of proportion
It's hard to defend Richard O'Dwyer's actions. He appears to have knowingly profited from large-scale copyright infringement, even if he didn't directly host the content. It's not entirely clear if he broke the letter of the law in either the UK or the US, but we can't fault content companies and law enforcement officials for at least pursuing his site.
But the effort to extradite O'Dwyer to the United States seems disproportionate and unfair. O'Dwyer resided in the United Kingdom throughout the time period when he was operating TVshack. Unless there's evidence his actions were specifically directed at the United States—and simply operating a linking site in English or signing up for a .com/.net domain hardly seems like such evidence—any trial against him should occur in the UK. We're confident that there are more urgent uses of US law enforcement and judicial resources.
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