Fantastic piece from Krean Naicker from Open Org…
UK Home Secretary Theresa May has approved the extradition of British citizen Richard O’Dwyer to the United States, where he faces up to 10 years in prison for 2 counts of copyright infringement.
O’Dwyer is accused of setting up and operating the TVShack.net website that linked to copyrighted material on third party websites. O’Dwyer’s legal team argue that the TVShack website is a mere conduit and in many ways similar to how Google operates and should therefore be awarded the same protection that Google and other search engines benefit from. The courts rejected this defence and the extradition request was upheld. The defence also pointed out that a recent judicial decision in the TV-Links case suggests that linking websites are perfectly legal under UK law. While the issue of legality under UK law is an important one, it needs to be addressed separately. This article instead concentrates on highlighting the implications of the decision on the functioning of the internet.
Like many alleged crimes committed over the internet, this case encounters numerous jurisdictional problems. O’Dwyer operated the website out of his bedroom in Sheffield and its servers were located in the Netherlands. Taking these facts into account one wonders the legal basis for a jurisdictional claim by the US. According to official court documents, the United States Government argue US jurisdiction on the basis that the TVShack website was publicly accessible and that O’Dwyer made available copyrighted material to the public. The document also makes reference to Government agents in Manhattan being able to access, stream and download copyrighted material via the TVShack website. Manhattan is within the Southern District of New York and since the offences of downloading and streaming occurred there, they argue that O’Dwyer should be prosecuted under US law.
This reason for jurisdiction is truly a cause for concern. It essentially means that a website operator can be sued by any country that the website is accessible to.
This also poses a risk to people other than website operators since it is increasingly the case that people are active content creators rather than passive internet users. It may be the case that someone is sued for their content by a foreign jurisdiction on the basis that it is accessible and illegal there but perfectly legal in the creators country of residence. This is not a far fetched notion, considering the different laws that exist between countries. Laws regarding free speech and expression widely differ from country to country and even copyright laws differ as in some countries it is a civil offence rather than a criminal one. People should have the right to freely express themselves on the internet without the fear of prosecution in a foreign jurisdiction and without fear that someone on the other end of the world can sue them on the perceived notion that it contravenes their local laws.
Currently a system exists in which we have a choice of the content that we wish to view and this power of choice needs to be preserved as it a core function of the internet.
These jurisdictional claims add an unnecessary layer of fear and content creators may have to resort to drastic measures to protect themselves legally. This may result in creators limiting their audience and excluding parts of the world where they think their content may be illegal.
The worst case scenario albeit minimal chance of happening is nationalised internets, where citizens may only view country specific content. It is quite obvious that putting up these firewalls are counterproductive and damaging to the internets infrastructure. The open nature of the internet has given society a platform in which people can freely express themselves and it even gave sections of society a voice that they previously lacked. A perfect example of this is the Arab Spring in which like minded political activists, who were once fragmented, utilised social media to organise and mobilise a rebellion against their political dictatorship. The rebellion spread like wildfire and this is primarily attributed to the internet providing a platform in which people can freely express themselves and access information. Unhindered access to information is a fundamental characteristic of the internet that should not be meddled with.
Some may say that if you don’t infringe copyright there’s nothing to worry about, but it would be disingenuous to say so. The reasons for jurisdiction in O’Dwyer’s case were also used in the recent seizure of internet gambling company Bodog.com. Unlike in most parts of the world, internet gambling is illegal in the US. Government agents in Maryland apparently accessed and placed bets using the website. Like in O’Dwyer the offence occurred in the US, resulting in the US asserting jurisdiction and seeking the extradition of the owner. The owner is a Canadian citizen and the website was neither registered nor hosted in the US. It is because the website is accessible to the US that gives it the nexus to that jurisdiction.
It is evident that a trend is developing in using this jurisdictional rationale and the US is setting a very dangerous precedent in doing so. Although they have succeeded in their initial request to extradite Mr O’Dwyer, it is a pyrrhic victory which comes at a high cost that society has to bear. There needs to be a careful consideration of the implications and a proper weighing up of the costs and benefits to society before we allow other countries to export their local laws to those using the internet. This situation requires immediate clarification before the internet population is engulfed in jurisdictional chaos.