Two Fatal Flaws in the O'Dwyer Judgment

So the long-awaited verdict on the extradition of Richard O’Dwyer has finally arrived, and, as feared, it's ridiculous. There are many others better qualified than I am to comment on the detailed legal issues of the lop-sided extradition...

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So the long-awaited verdict on the extradition of Richard O'Dwyer has finally arrived, and, as feared, it's ridiculous. There are many others better qualified than I am to comment on the detailed legal issues of the lop-sided extradition treaty that lies at the heart of the case, so I would like to concentrate on two aspects that I feel better able to comment on. Both touch on what I think are fatal errors in the judgment; either is enough undermine its arguments.

The first concerns the legal question of whether O'Dwyer's online activities – running first TVShack.net and then TVShack.cc – fall foul of section 107(2A) of the UK Copyright, Designs and Patents Act 1988, which says:

"A person who infringes copyright in a work by communicating the work in public
(a) in the course of business, or

(b) otherwise than in the course of business but to such an extent as to affect prejudicially the owner of the copyright commits an offence if he knows or has reason to believe that, by doing so he is infringing copyright in that work".

The judge held that O'Dwyer's site, which consisted purely of links pointing to other sites holding copies of content, some of which were unauthorised, did indeed infringe by virtue of those links – even though it offered no content itself. But to hold that would be to criminalise most of the UK Web, since there is no way that anyone but a trained copyright lawyer could establish whether the material they were linking to on a site halfway around the world was indeed authorised or covered by fair dealing exceptions – and even they wouldn't have the time to do that for every link.

That certainly means that every search engine operating in the UK is guilty of breaking the same law, since their results regularly link to material that probably isn't authorised in the same way as O'Dwyer's sites. Just because their results are produced by an algorithm doesn't affect the fact that they are linking – and following the O'Dwyer judge's interpretation it seems to be enough to link to be found guilty of infringement.

Trying to enforce this ruling would break the UK Web or, at the very least, have a chilling effect on all online activity in the UK. Given the UK government's statements on making the UK a beacon of digital modernity, such an interpretation cannot stand: either it must be overturned by a higher court or the law itself will need clarifying.

The other flaw in the reasoning behind the judgment has nothing to do with the finer points of interpreting the law. It hinges on the following statement by the judge:

There are said to be direct consequences of criminal activity by Richard O'Dwyer in the U.S.A. albeit by him never leaving the north of England. Such a state of affairs does not demand a trial here if the competent U.K. authorities decline to act and does, in my judgement, permit one in the U.S.A.

The US authorities make much of the fact that O'Dwyer allegedly earned "over $230,000 in payments" from advertising on his site. But that does not mean that there was a corresponding loss of $230,000 on the part of the US copyright industries. This comes back to a central issue that I have discussed several times before: there is still no evidence that online sharing is causing any financial harm to the content industries. Indeed, there is some – albeit limited – evidence that sharing actually increases sales of works thus shared.

The Hargreaves report noted that it could find no hard evidence of this claimed harm except in reports with dubious methodology that had been commissioned by the music and film industries themselves. And more recently, in the wake of the White House response to a citizen petition about SOPA/PIPA the well-known publisher and pundit Tim O'Reilly made the same point:

In the entire discussion, I've seen no discussion of credible evidence of this economic harm. There's no question in my mind that piracy exists, that people around the world are enjoying creative content without paying for it, and even that some criminals are profiting by redistributing it. But is there actual economic harm?

In my experience at O'Reilly, the losses due to piracy are far outweighed by the benefits of the free flow of information, which makes the world richer, and develops new markets for legitimate content. Most of the people who are downloading unauthorized copies of O'Reilly books would never have paid us for them anyway; meanwhile, hundreds of thousands of others are buying content from us, many of them in countries that we were never able to do business with when our products were not available in digital form.

This is an absolutely crucial issue: until the copyright industries can show some peer-reviewed, independent research that there is actual economic harm from the unauthorised sharing of materials online the US authorities have no right going around dragging people from other countries using skewed extradition laws in an attempt to bully and cow people.

That might be something for the O'Dwyer lawyers to consider when making their appeal, which the current judge has permitted. He also notes that such an appeal will not be heard until after the Secretary of State has confirmed the order for extradition: so another useful action we can all take now is to write to our MPs asking them to call on the Secretary of State for the Home Department (aka Home Secretary), Theresa May, not to allow this unjust extradition to take place.

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