Extradition: a dangerous precedent for the digital age

What does the recent Afghani massacre and a Computer Science student from Sheffield have in common, and how do they relate to music? Read on to find out…

We’ve frequently written about how large industry and government legislation has yet to have a handle on the current state of technology. There’s a growing awareness, and in time well-informed legislation will appear. Until then there is a legal pattern that we should be well aware of: extradition. Particularly as the current 2003 Extradition Treaty is lopsided and being wielded by uninformed politicians.

Richard O’Dwyer may be an unfamiliar name, you may know his website better, the now defunct TVShack. Shut down in 2010 by American authorities, the site offered users a directory of websites hosting television programmes and movies. The bulk of which infringed copyright. O’Dwyer’s site didn’t host any of these videos. This is an important distinction that we’ll return to. This week he lost an extradition hearing that means, if he loses his current appeal, he will be transported to the states to face trial in an American court.

He faces trial in America rather than the UK because he’s been charged by the American authorities with breaking US copyright law. If he were charged with breaking UK copyright – which he has done to the same extent as in the US – then this charge would supersede the American claim and he’d remain in the UK to face trial.

Back in 2004, German hacker Axel Gembe, guilty of breaking into American game studio Valve’s server and releasing the source code of the then unreleased Half Life 2 was in a similar situation. The FBI had built a case against him and were in the process of flying him to American soil where they were going to try him in an American court. When the German authorities learned the FBI’s plans they arrested him themselves, charged and tried him under German law and put him through domestic proceedings

When O’Dwyer’s site was closed down in 2010 by the US authorities his house was raided by British police. They seized his computers, but no charges followed. This left him unprotected, open to extradition.

There’s a multitude of reasons why a domestic trial is preferable to a foreign one. O’Dwyer faces being held in a federal detention centre until his trial, which could take months, even years to come up. It’s unfeasible for his family to move to America to be near him in the interim as it would be both costly and put their lives on hold. Once in the detention system he can be transferred between facilities throughout the country without warning making it intensely difficult to communicate with your family and legal team. Then he’d face a court system developed to protect the rights of US citizens, not those of foreign nationals.

We’ve seen this distrust of foreign trials in the past fortnight with the way the American military has responded to the Afghani massacre committed by one of their soldiers. They’ve exerted a great deal of effort to bring him back to face a domestic trial in front of a sympathetic jury instead of facing a foreign court, hostile to their occupation. Even domestically he is likely to receive a guilty verdict, he may even receive the death sentence, but it is considered better to receive a death sentence from a domestic court rather than a foreign one. This is despite the crime being committed on foreign soil against foreign citizens.

Staff Sergeant Robert Bales, charged with murdering 16 Afghani civilians.

O’Dwyer is not seeing the same concern from the British government. This is despite the fact that the crime he’s being charged with is not yet clearly defined as a crime.

Although O’Dwyer is charged with breaking copyright law, he himself never hosted illegal material. His site merely pointed to sites that did. Much like Google, or so his defence goes, he acted as a directory to other sites. If they were conducting illegal activity then that is their business. This is shaky legal ground and an area which has received continued attacks: the Pirate Bay trial in 2008, the closure of Mega Upload earlier this year, and the SOPA bill (thankfully voted down a few months ago). Yet, the point still stands, the US government has yet to define why Google is okay but these smaller sites are not. The UK is little better, we too are sidelining this issue until a later date. Because of this O’Dwyer is in a very precarious position.

A further complexity to O’Dwyer’s case is the lopsided nature of the 2003 Extradition Treaty. He is being extradited to the US on the suspicion of guilt, as there’s no defining line on whether his directory to copyright infringing material is itself an infringement of copyright. The same could not happen in reverse. For a US citizen to be extradited to the UK to face trial the British government would have to prove guilt, supply evidence. It is not a balanced treaty.

So, why after almost 800 words of preamble is this relevant to music? Because O’Dwyer’s case looks like a test run. An effort on the part of the entertainment industry to establish a pattern. If his extradition goes ahead and he is successfully charged then a precedent is in place for the US entertainment industry to press charges that see people facilitating copyright infringement being extradited to face months of internment and a hostile trial in a foreign country.

This is an industry that just months ago was heavily investing time and money into lobbying an act that could see sites linking to copyrighted material blacklisted from the internet. An industry that frequently and with bias threatens innocent people with charges of copyright infringement. These are not the people I want to see gain a legal road map to demand the transport of foreign nationals on the suspicion of a crime that is still undefined in statute.

The sooner the legislation around copyright is stripped out and rewritten in light of current technology the better. Until then we have to be loudly aware of loopholes like the 2003 Extradition Treaty.

I want to iterate that this is not a defence of O’Dwyer. I’ve little doubt that he knowingly profited from linking to content he knew to be infringing copyright. Yet, the legal proceedings  being brought against him are ill-defined and work to create a dangerous precedent that can be used in future against less deserving people.

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