MegaUpload founder Kim Dotcom may fit the larger-than-life image most people have of an internet pirate — after all, he is huge and wears black, and drives cars with license plates that say “Guilty” on them. Richard O’Dwyer is the polar opposite: he is a soft-spoken 24-year-old who started a website based in Britain called TV Shack that consisted only of links. Despite their differences, however, the U.S. government is trying to extradite O’Dwyer to the United States to face charges of criminal copyright infringement. While Dotcom hosted terabytes worth of infringing files, O’Dwyer simply linked to them — but in the eyes of the U.S. Justice Department, these two things are virtually equivalent. If the case proceeds, it could force us to change the way we think about some of the fundamental underpinnings of the web.

There are several elements that make the O’Dwyer case particularly important, factors that have led some prominent technology players to mount a protest over his potential extradition, including a petition started by Wikipedia founder Jimmy Wales (which my colleague Bobbie Johnson wrote about) that now has more than 200,000 signatures. In an opinion piece he wrote recently for The Guardian‘s comment section, Wales — who is now also an advisor to the British government — said that while he is in favor of strong copyright protection for content creators of all kinds, that commitment only goes so far. As he put it:

It does not mean that we should abandon time-honoured moral and legal principles to allow endless encroachments on our civil liberties in the interests of the moguls of Hollywood.

The U.S. wants O’Dwyer extradited for linking

By way of background, O’Dwyer started the TVShack.net website in 2007 as a resource for those who were looking for either live-streaming video versions of television shows or for downloads. A disclaimer on the site at the time it launched said: “TV Shack is a simple resource site. All content visible on this site is located at 3rd party websites. TV Shack is not responsible for any content linked to or referred from these pages.” The U.S. government disagreed, however: in 2010, officials with the U.S. Immigration and Customs Enforcement Department (ICE) seized O’Dwyer’s domain and shut the site down. O’Dwyer then moved to a different domain and that was seized as well.

The British government considered mounting a case against O’Dwyer for linking to copyright-infringing material, but decided not to — in part because an earlier case against a similar website that also linked to streams and downloads of TV shows was thrown out, after the judge decided that linking to copyright infringing videos is not a crime. There have been similar cases in other jurisdictions, including a recent ruling by the Federal Court of Canada that said linking to a photo was not considered copyright infringement for the purposes of that country’s criminal code.

The U.S. wasn’t willing to give up so easily, however: the government started an extradition case against O’Dwyer, arguing that he should be sent to the United States to face a trial that could put him in prison for up to 10 years. In March, the Home Secretary ruled that the extradition could proceed — despite the fact that extradition to the U.S. is only supposed to occur when the acts involved are considered to be a crime in both Britain and the United States. O’Dwyer is now appealing that ruling (a news story on Tuesday said the Home Office had decided to back the extradition despite the protests and petitions in his favor, but Wales said on Twitter that this isn’t true).

@MadBennett HO has not responded. I expect them to respond positively soon to meeting with me. Low-level spokesman wrong.

—
Jimmy Wales (@jimmy_wales) July 03, 2012

The O’Dwyer case has no connection to the U.S.

As Wales notes in his Guardian op-ed, the O’Dwyer case is just another example of the impulses that drove U.S. legislators to push forward both SOPA and PIPA — the anti-piracy laws that sparked a massive outcry online last year and led to both of the proposed bills ultimately being shelved. In both of those pieces of legislation, websites could be removed from the internet and subjected to prosecution if their “primary purpose” was judged to be piracy or copyright infringement. In a similar way, the U.S. is likely to argue that since O’Dwyer linked primarily to illegal copies of TV shows, he should be guilty of secondary infringement for “inducing” others to post copyrighted content.

The concept of “inducing” infringement by others is also a centerpiece of the MegaUpload case, but at least that involves files being uploaded to servers owned by Dotcom’s company — O’Dwyer simply linked to things, just as Google or any other search engine does, and he also took down links whenever a rights-holder asked him to, which is one of the tests for when a company should be entitled to “safe harbor” under U.S. copyright laws. Not only that, but the only connection to the United States is that U.S. citizens presumably accessed the website, just as anyone can access a website anywhere, regardless of where they live.

Those two factors — the nature of the website as a collecter of links, and the lack of any connection to the United States that would justify an extradition — are what make the O’Dwyer case particularly troubling. With the case, the U.S. government appears to be asserting that linking to copyright infringing files under any circumstances should not only be an offence but an extraditable offence, and that the U.S. government is fully prepared to reach into other countries and extradite their citizens when there is virtually no connection whatsoever between that person’s acts and U.S. law or jurisdiction.

As media and entertainment conglomerates continue to put pressure on the U.S. government to enact or agree to legislation like SOPA and PIPA, or their international equivalents such as ACTA, cases like O’Dwyer’s should raise some troubling questions about how far the authorities are prepared to go, and what the ultimate impact will be on the web as we know it. If you’re interested in more of my thoughts on the case, I recently spoke about these issues on a CBC Radio program in which Jimmy Wales also appeared.

Post and thumbnail images courtesy of Flickr users Mark Strozier and Keith Allison

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Richard O’Dwyer was arrested and bailed in 2010 for being the owner and operator of TVShack, a “resource site” which allowed people to search for web pages hosting videos — many of them pirated. The domain had been seized by U.S. federal agents several months earlier, but after British prosecutors declined to follow up the charges in May 2011, Department of Justice officials launched extradition proceedings.

Now Wales has joined a cohort of campaigners who say that if O’Dwyer is to be taken to court for his activity, it should be in Britain and not in the United States — and that he should not be forced to leave the United Kingdom.

Wales, who now lives largely in London and acts as an advisor to the U.K. government on data issues, made his support for O’Dwyer public announcement in The Guardian. In it, he suggested that big content companies were dictating the law and likening the situation to the recent SOPA protests — in which Wikipedia and other sites went dark in protest.

US authorities claim that O’Dwyer illegally made around £147,000 from advertising displayed on the site over three years. His lawyers contend that linking to other content is not illegal under UK law, and point out that Britain’s Crown Prosecution Service did not pursue charges against him.

[…]
Given the thin case against him, it is an outrage that he is being extradited to the US to face felony charges. No US citizen has ever been brought to the UK for alleged criminal activity on US soil. There is a disparity here that ought to raise concerns at the highest levels of government in both the US and UK.

From the beginning of the internet, we have seen a struggle between the interests of the “content industry” and the general public. Due to heavy lobbying and much money lavished on politicians, until very recently the content industry has won every battle. Internet users handed the industry its first major defeat earlier this year with the epic Sopa-Pipa protests over planned copyright laws that culminated in a widespread internet blackout and 10 million people contacting the US Congress to voice their opposition.

Internet celebrities, politicians and others have all pledged their support, and petition in support of O’Dwyer set up by Wales currently has more than 12,000 signatures — though a previous petition that raised more than 23,000 signatories failed to get the U.K. government to intervene.

The issue of Britain’s extradition agreement with the U.S. has come up several times before in technology circles, not least in the case of Gary McKinnon — the hacker who broke into American military computers in 2002 looking for evidence of UFOs and has spent the last decade fighting extradition.

But O’Dwyer’s case is more complicated and confusing — and controversial — than McKinnon’s.

First there is the legality of the situation: O’Dwyer has argued that his site was merely a search engine — like Google — that complied with takedown requests when asked. The fact that he has not been pursued by the British authorities suggests that the evidence against him is not as strong as opponents might hope.

Then there is the fact that none of the alleged crimes were committed on U.S. soil, or by an American. This makes many opponents concerned about the potential implications for cross-border prosecution in the future.

Then there is the unignorable fact that the case involves copyright. This has undoubtedly brought in supporters on both sides, who see his position either as a copyright cartel wanting to prosecute anybody who challenges them, or a scapegoat for a system that does not understand technology. This element of controversy adds an extra layer of difficulty, and adds a shrill tone to campaigning on either side.

It’s impossible to know where this will end up — but it does seem almost certain that O’Dwyer will be fighting his case for a very long time.

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