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Alleged copyright infringing student extradition approved

Out-Law News | 14 Mar 2012 | 12:49 pm | 2 min. read

The Home Secretary has approved the extradition to the US of a student accused of copyright infringement.

The decision means Richard O'Dwyer faces the prospect of being tried in the US over the alleged offences. O'Dwyer can appeal against the decision.

O'Dwyer ran a website called TVShack until 2010 when he took the website down following a visit from police and US officials. The website provided links to other sites where pirate copies of films and TV programmes could be downloaded.

In January Mr Justice Purdy, sitting in a Westminster Magistrates Court, ruled that O'Dwyer should be extradited to the US. Now Home Secretary Teresa May has approved the decision. A spokesman for May said the decision was taken after the Home Secretary had "carefully considered all relevant matters," according to the BBC.

Although UK authorities have not acted over the alleged infringement, the US Immigration and Customs Enforcement (ICE) requested O'Dwyer be extradited to the US to face charges that he breached the country's copyright laws. ICE has claimed that the TVShack website generated "over $230,000 in advertising revenue" until the domain name was seized in June 2010.

O'Dwyer's lawyers have argued that because the website only linked to pirated content it was not infringing copyright law and was in fact similar to search engine Google. O'Dwyer's lawyers have insisted that he should only face criminal charges in the UK.

However, May has now decided that O'Dwyer should be extradited to face the charges. The UK-US extradition treaty agreement allows either country to surrender a criminal suspect to the other if the crime carries a minimum punishment of a year's prison sentence. O'Dwyer could face a ten year jail term in the US if he is found guilty by a US court.

O'Dwyer's mother said her son was "being sold down the river" by the Government, according to a report by Wales Online.

"Richard's life - his studies, work opportunities, financial security - is being disrupted, for who knows how long, because the UK Government has not introduced the much needed changes to the extradition law," Mrs O'Dwyer said.

Under the UK's Extradition Act judges can prevent UK citizens being extradited if "it appears that a significant part of the conduct alleged to constitute the extradition offence is conduct in the United Kingdom, and in view of that and all the other circumstances, it would not be in the interests of justice for the person to be tried for the offence in the requesting territory".

However, those 'forum bar' provisions of the Act have not been implemented. In his review of UK extradition arrangements Lord Justice Scott Baker said he did not think there was a case for them to be introduced.

In November the UK's top legal adviser told Parliament that the Lord Justice's recommendations should be viewed as merely "guidelines" and that Government was not compelled to follow them.

Attorney General Dominic Grieve said that "formal guidance" was more appropriate for "prosecuting authorities" to follow "when deciding whether or not to prosecute in the United Kingdom a case involving cross-border criminal conduct".

A copyright law expert previously told Out-Law.com that US authorities would be keen that alleged copyright offenders are tried in the US rather than the UK. He said this was because successful prosecutions are more likely in the US than UK for the offence of 'authorising copyright infringement'.

"The only case where that offence 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," Iain Connor of Pinsent Masons, the law firm behind Out-Law.com, said.

"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," Connor said.