Richard O'Dwyer

From Wikipedia, the free encyclopedia

Richard O'Dwyer
Born	5 May 1988 (age 23) Sheffield, United Kingdom
Nationality	British
Citizenship	United Kingdom
Occupation	University Student
Known for	TV Shack Search Engine
Religion	Roman Catholic

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.

[hide]

[edit]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 the2003 US-UK Extradition Treaty.^[1] The extradition request follows the Southern District Court in New York bringing two charges against Richard O'Dwyer for criminal copyright infringement 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.^[2]

[edit]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 bail. On the 14 June 2011 Richard O'Dwyer appeared before the Westminster magistrates court for a preliminary hearing for the extradition request.^[3] 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.^[4] The hearing for the extradition is scheduled for the 12 September.^[5]

[edit]TVShack

Richard O'Dwyer was reportedly the administrator of the website TVShack, via the domain names TVShack.net and TVShack.cc.^[6] 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."^[7] Richard O'Dwyer reportedly shut down TVShack the day after he was visited by police and US officials at his student accommodation in Sheffield in November 2010.^[8]

[edit]Domain seizure of TVShack.net

As authorized by the court warrant for the domain seizure visitors toTVShack.net are redirected to "a banner that advises them that the domain name has been seized by Order of the Court, in connection with criminal copyright violations."^[9]

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 theNational Intellectual Property Rights Coordination Center. Assistant United States Attorneys Thomas G.A. Brown, Rebecca Rohr, Joseph Facciponti, Jason Hernandez, and Michael Ferrara, were in charge of the investigation.^[10]^[11] 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.”^[12]

[edit]Extradition controversy

[edit]Copyright infringement

According to the Open Rights Group 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.^[13] 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."^[14] 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.^[15]

[edit]Juristiction

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.^[16] 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.”^[17] 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."^[18]

[edit]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 McKinnon.^[19] 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.^[20]

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."^[21] 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."^[22]