A current anti-piracy case demonstrates the U.S. government’s intent to enforce its copyright laws not just beyond national borders, but beyond the extent of logic. The U.S. Department of Justice has issued an arrest warrant and extradition order for a 24-year-old college student in England who ran a website that contained links to independent websites that hosted pirated television shows and movies. By holding a mere intermediary accountable for allegedly pirated content offered on other websites, the department has set an alarming precedent with major free speech implications.
Richard O’Dwyer, who has never left the United Kingdom, is at the center of a heated debate regarding U.S. laws related to copyright, free speech, and jurisdiction. O’Dwyer ‘s website, TvShack.net, is registered in the United States, thereby giving the U.S. government a claim to exert jurisdiction over it and its owner even though the servers hosting the website are not U.S.-based. The website allowed users to search for and link to other websites; the government alleges that some of those links led to pirated movies and television shows. The government seized the domain on June 30, 2010, for “violations of federal criminal copyright infringement laws.” O’Dwyer has been charged with conspiracy to commit copyright infringement and criminal infringement of copyright.
The government’s case against O’Dwyer raises a number of important issues. First, O’Dwyer himself did not host the allegedly infringing material. His website allowed users to run searches that returned links to both legal and allegedly illegal content on external websites. If O’Dwyer can be criminally prosecuted for the dissemination of copyrighted content that he did not host, where would the chain of liability for such content end? Would search engines linking to such websites bear responsibility for their content? Would anyone sending a link to that website face criminal prosecution, even someone who actually download or view the content? There is no telling how far the DOJ intends to push this issue, but O’Dwyer’s case is a good indication that the DOJ seeks to extend the limits as far as the courts will allow.
O’Dwyer’s status as a British subject raises less novel but no less compelling questions about the United States’ jurisdiction to extradite and prosecute individuals on copyright infringement charges. O’Dwyer’s extradition has been approved by the British courts as well as the British home secretary, but many still believe that any trial should take place in Britain since O’Dwyer has never set foot in the United States and the servers hosting the website were also not on our shores.
O’Dwyer is currently appealing the extradition. Last month, Wikipedia founder Jimmy Wales, in a rare political intervention, called upon British Home Secretary Theresa May to stop the extradition efforts.
The circumstances of this case are reminiscent of the high-profile Megaupload case, in which the U.S. government issued an extradition order for Kim Dotcom in New Zealand. Dotcom ran an internet “lockbox,” in which users could upload content, including video and music, to a website and then share access with other users. Factually, these cases differ in that Megaupload hosted the content that was uploaded by users, whereas O’Dwyer only provided links to other websites. New Zealand also appears less willing to approve extradition, having pushed a hearing on the matter to March 2013, while Dotcom remains free on bail.
In instances of intermediary liability, the need to protect copyrighted works is outweighed by an individual’s interest in remaining free from criminal prosecution for the acts of another. The remedy, if one is justified, is better addressed through civil penalties rather than criminal prosecution.