Mother of UK university student who ran TV Shack says reforms will come too late to save her son from US court action
A knock on the door on 10 November 2010 changed Richard O'Dwyer's life. Police officers informed the then 22-year-old university student that he was the subject of a criminal investigation because his website, TV Shack, allowed illegal file sharing.
The first indication that O'Dwyer might be in trouble was in July that year when the US authorities shut down the website. He created a new version hosted on servers in Australia but this was shut down in November, and a visit from the police soon followed. His mother Julia told us that all went quiet for six months.
"The police returned in May and said the criminal investigation in the UK had been dropped but, here, have this," she said.
"This" was an extradition warrant granted to the US Immigration and Customs Enforcement agency. The warrant stated that Richard's TVShack.net website was infringing copyright and that he had made more than $240,000 (£149,000) in advertising revenue before US authorities obtained a warrant and seized the domain name in June 2010.
Mrs O'Dwyer said that at no point had they received communications that said Richard was doing something illegal. The site did not host any illegal content and only provided links; under English law he may not even have committed a crime. He could have argued that providing links to copyright-protected material meant he was acting as a conduit, a stance adopted by many ISPs.
"Richard thought that because two large American companies wanted to advertise on his site, that meant the site was not illegal. He felt the money would help pay for the upkeep of the site," she said.
Sophie Farthing, policy officer at civil rights organisation Liberty, said: "Cases like Richard's show that the promised reform of our extradition system cannot come soon enough. His alleged offences took place here in the UK and – as the Home Secretary has now accepted – in these cases a British judge should be able to block extraditions that would be unjust.
"It compounds the unfairness of Richard's case that the alleged activity may not even be criminally punishable in the UK."
These changes were announced by Home Secretary Theresa May in October after she quashed the extradition warrant for Gary McKinnon, who was accused of hacking into US government computer networks.
However, McKinnon's warrant was cancelled because of Theresa May accepted that he was seriously ill, and that his depression could lead to suicide if imprsoned in the US.
Among the changes, the Home Secretary announced that British courts will have the power to block extradition to the US if they believe a defendant should stand trial here.
Mrs O'Dwyer doesn't hold out much hope that the proposed recent changes will come in time to save her son if he loses his appeal in December. She said if this happens his fate is virtually sealed.
"There is no point dragging this out as there is effectively nowhere else for us to turn legally," she said.
Punishing the file sharers?
A history of file sharing and the law
• Multi-millionaire Kim Dotcom (aka Kim Schmitz ) still faces extradition to the US for running the Megaupload file-sharing site. Although German by birth he lives in New Zealand. Like the UK, the country has an extradition treaty with the US. Unlike the UK it lists the crimes for which one can be extradited. Copyright infringement is not among them and legal experts believe that he is unlikely to be extradited.
• Pirate Bay co-founders Fredrik Neij, Gottfrid Swartholm Warg and Peter Sunde Kolmisoppi, along with financier Carl Lundstrom, were found guilty in 2009 "for preparing for breach of copyright". They were sentenced to serve one year in prison, which was later shortened and fined £2.4 m. Although six US film makers were among the rights holders filing civil charges the US did not try to extradite the four men
• David Rock, the owner of UK site TV Links, was arrested in 2007 by Gloucestershire police and his website shut down. No illegal content was hosted on the site. He faced charges of conspiracy to defraud and breaches of the Copyright Designs and Patents Act. When it reached court, the judge dismissed the charges.
Is illegal file sharing a civil or criminal offence?
In the UK copyright infringement is normally treated as a civil matter so the person doesn't face jail but can be fined.
However, the rights holder can pursue a criminal prosecution if someone is profiting from a copyright infringement venture, such as a file sharing website that gets revenue from advertising.
The Intellectual Property Office says "copyright is essentially a private right so decisions about how to enforce your right...are generally for you to take".
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