Out-Law News | 16 Jan 2012 | 12:40 pm | 3 min. read
Richard O'Dwyer should face the charges in the US because the authorities there have claimed that the student's actions contributed towards "criminal activity" and despite there being no action taken against him in the UK, the judge said, according to reports.
"There are said to be direct consequences of criminal activity by Richard O'Dwyer in the USA, albeit by him never leaving the north of England," Mr Justice Purdy said in his ruling, according to a report by the Guardian. "Such a state of affairs does not demand a trial here if the competent UK authorities decline to act, and does, in my judgment, permit one in the USA."
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.
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 claims that the TVShack website generated "over $230,000 in advertising revenue" until the domain name was seized in June 2010, a report by the BBC said.
O'Dwyer's lawyers 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, the Guardian report said. O'Dwyer's lawyers have insisted that he should only face criminal charges in the UK.
However, Mr Justice Purdy ruled 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, according to the Guardian.
Iain Connor, expert in copyright law at Pinsent Masons, the law firm behind Out-Law.com, previously said that US authorities would be keen to see alleged copyright offenders tried in the US because the law there is so different to that in the UK.
"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' which in the UK is not a well-defined offence," Connor said. "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."
"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. Whether this will succeed is no doubt a case that will run and run if the previous case involving Gary McKinnon is anything to go by," Connor said.
The UK's extradition agreement with the US has proved controversial. Campaigners for computer hacker Gary McKinnon have argued that provisions within the UK's Extradition Act that allow judges in the UK to 'bar' an extradition should be introduced.
McKinnon was arrested in 2002 on suspicion of hacking into US computer systems, including those belonging to NASA and the Pentagon. US authorities have called for McKinnon to be extradited but McKinnon, who has admitted hacking into the systems but disputed the amount of damage caused, is fighting the summons on medical grounds.
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".