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Friday, 13 January 2012

McKinnon vs O'Dwyer

A case I've been following since it broke in the Sheffield Star is that of Richard O'Dwyer, who faces extradition to the US on charges of criminal copyright infringement for a links website he hosted in the UK.

Several aspects of this case are deeply worrying.  Merely linking to infringing content has not so far been shown to constitute infringement here in the UK.

But the most worrying aspect is also the main difference between the O'Dwyer case and that of another British citizen facing extradition, Gary McKinnon.

The McKinnon case raises its own set of issues, but there is at least a clear victim - the US Department of Defence - linking the case to US territory.

But the O'Dwyer case does not have a US "victim".  Before you cry "but the American film studios and US recording artists" you must consider that copyright protection is granted by the jurisdiction in which the potential infringer resides.

Richard O'Dwyer is alleged to have committed copyright infringement whilst resident in the UK. He was therefore at the time subject to UK copyright laws, and any UK offence can only be determined by UK courts.

But I hear that's not the angle US authorities are claiming.  I spoke to a contact over summer who claimed the US authorities were pushing for jurisdiction because at least one of the sites O'Dwyer is alleged to have run was hosted under a .com, .net or (possibly) .org suffix.

Why? Because these domains are overseen by US bodies, and US authorities are now claiming anyone who hosts a website under a top level domain (TLD) managed within US jurisdiction submits themselves to US law. Peter Walker of the Guardian verified my source when he spoke to Erik Barnett, assistant deputy director of the US Immigration and Customs Enforcement Agency.

So where does that leave UK-based website owners running service potentially illegal in the US, e.g. gambling etc? Who knows. I wrote more about it in Sovereignty Creep and Elastic Jurisdiction.

Note .org, whilst manager by the Afilias registry headquartered in Ireland, is overseen by US-based Public Interest Registry.  .com and .net are managed by US company Verisign.

@JamesFirth

3 comments:

  1. James, a hopefully simple (possibly dumb) question: if this comes down to the .com being managed in US jurisdiction, could the UK (or anyone for that matter) request extradiction for a US citizen for the same offence i.e. if someone over there was doing something naughty with a .co.uk or a .fr? I'm trying to understand if this is a one-way process that the UK has signed itself up to with its extradition arrangements.

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  2. Simple answer I don't know. In theory, but it's a dumb claim which could leave many to question the wisdom of hosting .com etc. for many individuals and corporations.

    Also raises question of where will this end. ICANN? Does US claim jurisdiction over entire internet? What about new generic TLDs? Wouldn't want to invest in one if, as a TLD owner I'm submitting self to be extradited on a whim of studio lobbyists for what subdomain owners do...

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  3. Surely the criterion is whether the person has committed a crime in the country from which extradition is sought? The Home Office declined an extradition request from Turkey relating to the Duchess of York, and this relates to her alleged conduct whilst actually in Turkey. The Home Office response was that even if she had committed a crime in Turkey whilst actually there, what she is alleged to have done is not a crime in the UK.

    The issue would therefore appear to be whether linking to another site (in the manner in which it was done) where copyright infringing material may be found, is an offence in the UK. Not whether the UK has a "copyright crime" that is similar to a US "copyright crime". My recollection is that the only UK copyright convictions relating to web sites are where defendants pleaded guilty to wrongly laid charges in the Oink case.

    ReplyDelete

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