So the question being asked around the world in the wake of Obama's online forum is the following: Who is this Richard O'Dwyer, and why is he so important?
A query about Richard O'Dwyer, a 23-year-old Sheffield Hallam undergraduate who faces jail if sent for trial and convicted in the US, was the most [2,073] asked of more than 133,000 questions submitted to a live online Google+ "hangout" with the [U.S.] president broadcast on Monday.
Recent actions of the U.S. government have shattered our understanding of copyright. Universities now need to provide new detailed guidance to faculty and students. They will also need to action to protect Internet Domain Names of their affiliates.
On January 13th a Magistrates' Court in the United Kingdom ruled that Richard O’Dwyer, a student at Sheffield Hallam University, could be extradited to the U.S. on U.S. charges of copyright infringement, even though he has never left England and never had infringing files on this computer.
One week later two helicopters, 76 New Zealand police and 4 U.S. FBI agents raided and searched Kim Dotcom’s home in Auckland arresting Dotcom and four colleagues 1. The U.S. Department of Justice seized Megaupload.com and fifteen other domain names, all but one of his bank accounts, and his physical assets. Computers were seized for evidence. He is currently in custody. The New Zealand police were careful to say they did not file charges, but rather executed the raid on behalf of the U.S. government.
The strategy used by the U.S. government against O’Dwyer was explained by a U.S. Immigration and Customers Enforcement [ICE] official who said: “This was like drugs. You want to cut out the middle man.”
O’Dwyer became a U.S. target when his student website linked users to files—not on his computer— that are subject to U.S. copyright. U.S. authorities seized his TVSHACK.com Internet domain name claiming copyright infringement by inducing users to download or stream films and music. Since the .com and .net Internet names are controlled by the U.S. Department of Commerce—not ICANN the Internet Corporation for Assigned Names and Numbers—the U.S. claims both control of domain names and world-wide jurisdiction over the websites using those names. Because a U.S. domain name—at least in the view of the U.S. Department of Justice—was used, the U.S. claims he committed a U.S. crime.
Linking to files from an index may not be a crime in the U.K. and when challenged, U.K. authorities did not initiate prosecution. The Motion Picture Association of America (MPAA) now claims “these ‘foreign thieves’ are stealing money and taking U.S. jobs”.
One of the issues is whether the files linked from O’Dwyer’s computer were “made available” or whether they were made available by the server on which the files resided. Magistrate Purdy wrote: “always remembering these matters are allegations of conduct which a trial court alone can resolve” and ruled “Accordingly in my judgement I am satisfied the conduct alleged in the instant request meets the dual-criminality test and would be an offence in this jurisdiction”2 - PDF. Which permits O’Dwyer to be extradited to the U.S. subject to subsequent appeal and the approval of the Home Secretary.
The second issue is “inducement to copyright". Writing about the Megaload indictment, Jennifer Granick, of Stanford Law School's Centre for Internet and Society, said “Can the Grokster theory of CIVIL liability even be the basis for CRIMINAL copyright claims?”3 - PDF It seems not.
The third issue is conspiracy, as alleged in U.S. v Megaupload. Granick comments “If Defendants agreed with each other to induce others to infringe, and Rojadirecta’s [a similar case] lawyers are correct that inducement is not a crime, there’s a conspiracy only to violate a CIVIL law”. Likely O’Dwyer’s U.S. case will not allege conspiracy. “Is it a federal crime to conspire to induce others to violate a U.S. civil law? The answer to that is an obvious ‘no’.”
For several years it will not be clear if linking “induces” users to commit copyright infringement and therefore linking is a crime. But faculty and student should be aware the U.S. did obtain an indictment for conspiracy in Megaupload’s case.
The U.S./UK Extradition Treaty was under review when O’Dwyer’s extradition was ruled legal. Now the extradition treaty will be viewed differently than when the discussion focused on terrorists or on people alleged to be terrorists.
The Daily Mail reported: “Former Liberal Democrat leader Sir Menzies Campbell yesterday attacked efforts by the U.S. to extradite a British computer student for trial. The QC said the extradition treaty between Britain and America was “never intended” for people like Richard O’Dwyer, whose offences are not even a crime in this country.”4 O’Dwyer’s case was an important discussion in U.S. President Obama’s Google+ Hangout session Monday, 30 January 2012.
At last week’s Sundance film festival Motion Picture Association of America (MPAA) chief Chris Dodd, referring to the public response to the U.S. Stop Online Piracy Act (SOPA) and PIPA (Protect Intellectual Property) proposed legislation, admitted "It's a watershed event, what happened,” noting “that opponents ability to organize and communicate directly with consumers” was a game-changing phenomenon that he hadn't seen in more than three decades in public office 5. National Association of Theatre owners (NATO) president John Fithian illustrated the point saying that his son angrily asked him why he was trying to take away his Internet.
Because of reporters Anna Leask of The New Zealand Herald, Peter Walker of the Guardian and Eriq Gardner of The Hollywood Reporter this story is not going away. The actions of the MPAA, FACT UK’s Federation Against Copyright Theft, and the U.S. government will be scrutinized and their readers informed.
Faculty and students need to have clear guidance on intellectual property. Case law will take several years to answer even the basic questions about internet related activities. Faculty and students can be warned about the events that are occurring so they can better assess possible risks, not only from their country’s laws, but those of other countries as well.
Colleges and universities, likely future targets of litigation, can take these actions:
- Demonstrate the value of collaboration widely. Several years ago Indiana University Brad Wheeler commented that everyone should include a Creative Commons license on every presentation and every document as a symbol of support for sharing of knowledge.
- Educate students early about copyright and royalties as an issue of ethics, not as an arcane issue for law classes.
- Study and communicate facts about student use, student interests, and college and universities responsibilities and capabilities. Educate students about current enforcement practices.
We should appreciate Richard’s burden of being “the guinea pig” for doing something he was told was lawful.
Jim Farmer: biography; email - jfx "AT" immagic "DOT" com.
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