Criminalizing links: Why the Richard O’Dwyer case matters

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 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).

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