Why did TV-Shack 'pirate' Richard O'Dwyer escape U.S. extradition?

Summary:British resident Richard O'Dwyer escapes extradition to the U.S. over copyright infringement claims, but what does this mean for future actions between the U.K. and U.S.?

richard odwyer extradition claim copyright signed deal america united kingdom
Credit: Change.org

24-year-old Richard O'Dwyer once faced trial in the U.S. on copyright infringement charges, but signed a deal to avoid forceful extradition.

The former student from Sheffield, U.K. signed a "deferred prosecution" agreement which would see him pay a "small sum" of compensation. He will head stateside voluntarily in the next month to ratify the agreement, BBC News reported.

The new agreement states that he should pay compensation, and promise not to breach copyright laws in the future. If he does so, he could face prosecution again. O'Dwyer must travel to the U.S. within two weeks in order to ratify the deal.

O'Dwyer was founder of Web site TV-Shack, which provided aggregated links to other sites that hosted copyrighted material, including television shows and movies. Although no pirate material was hosted on TV-Shack directly, the former student's domain name was seized by the U.S. Immigration and Customs Enforcement (ICE) agency in 2010 and the site shuttered.

The U.S. government argued that the Web site generated over $230,000 in advertising revenue while the site was live, and therefore O'Dwyer was ultimately culpable.

leaked memo  obtained from the Motion Picture Association of America (MPAA) suggested that TV-Shack had one, singular purpose -- and was not simply as a search engine, a common defense of O'Dwyer's supporters. Instead, it provided, "pirated content almost exclusively to viewers." The memo also stated that he, "profited heavily" from the site, and was therefore more than simply a scapegoat or, "middleman." 

But what must be a relief for the family does not alter the fact that many people following the case believe the laws applied to bring the situation to this level may be flawed, and do not protect the U.K. general public. 

O'Dwyer was facing extradition under the Extradition Act 2003, meaning the former student could be forcefully hauled across the pond to face accusations of copyright infringement. As U.S.-based artists, businesses and record labels may have suffered due to TV-Shack -- as well as the claim that most of the site's visitors were based in America -- U.S. authorities were able to insist on O'Dwyer standing trial in their country, in spite of the site's operations running through his bedroom on British soil. 

The saga continued for over a year, and an online petition launched by Wikipedia founder Jimmy Wales gained over 250,000 signatures. However, after Home Secretary Theresa May approved the extradition order in January this year, things looked bleak for the TV-Shack founder.

Appeal delays and Christmas fast approaching, O'Dwyer's lawyers came up with a solution.

The DPA is not a 'get-out' clause; it's the indefinite deferring of a prosecution, like a plea bargain.

The Guardian's analysis of the extradition case says that the "Deferred Prosecution Agreement" (DPA) reached by O'Dwyers' lawyers and U.S. prosecutors, a workaround based on a financial claim, is an agreement to defer a criminal prosecution as long as conditions are set and agreed to. 

Applicable to both individuals and corporations, the threat of prosecution remains if conditions are breached. 

Rather than string the TV-Shack owner along any further, the DPA is like entering a plea bargain before the case reaches court; it saves time, money, and the cost of a one-way plane ticket. 

The U.K. is currently adopting the concept of a DPA, something which is already in use within the United States. However, DPAs will generally be reserved for "complex fraud cases," according to the London-based newspaper. 

The fact that O'Dwyer's lawyers were able to bring the agreement to fruition -- but had to bargain with the U.S. government directly rather than with his own political, elected representatives -- raises further questions concerning the balance of the U.K.'s Extradition Act. A far cry from threats of years in prison, the founder of the site that supporters said "worked like Google" now will pay a fee and escape time behind bars.

Loz Kaye, leader of Pirate Party U.K., told BBC News that this shows the act to be "disproportionate and unnecessary." Kaye went on to say that:

It does not remove the underlying problem, though. The U.S. cannot be allowed to be the copyright cops of the world.

However, a change in the act may soothe the idea of the U.S. authorities becoming global "copyright cops." As noted by U.K. civil rights group Liberty, amendments were made to the Extradition Act in 2006, but have yet to become law. 

The 'forum bar' gives our courts the discretion to stop extradition if the alleged criminal conduct occurred in Britain. If in force, such a provision could allow U.K. judges to halt the extradition of Richard [..] among others. There's nothing preventing the Government from activating it, yet frustratingly it remains dormant.

Last month, May blocked the U.S. government's bid to ship alleged NASA hacker Gary MacKinnon on the basis of the concern that his human rights may be infringed. Discretion is necessary in politics -- sure -- but 250,000 public signatures later and ignoring campaigns to show the same discretion for O'Dwyer, perhaps more than one politician's opinion is necessary to safeguard those accused of copyright infringement in the United Kingdom. 

If it does not matter where copyright infringement takes place, or which audiences it affects, then the only solutions are either to provide a safeguard which allows the accused to attend court in the country in which the alleged infringement took place, or to globalize the same standards and consequences for pirates. 

Considering America's dance with SOPA, PIPA and CISPA, the U.K's Digital Economy Act  and varying severity of copyright infringement claims across the globe, the latter option is highly unlikely.

Perhaps, instead, it's high time for our political "representatives" to listen to the public and reform legislation which causes an imbalance of power between the U.K. and other countries?

Topics: Legal, Piracy

About

Charlie Osborne, a medical anthropologist who studied at the University of Kent, UK, is a journalist, freelance photographer and former teacher. She has spent years travelling and working across Europe and the Middle East as a teacher, and has been involved in the running of businesses ranging from media and events to B2B sales. Charli... Full Bio

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