22 Apr 2012 by Dave.

Yesterday, I read and commented on Judge Purdy’s judgement as to why Richard O’Dwyer had committed a serious crime in the this country and hence was liable to extradition to the USA. Here’s the source of my outrage,

he is due to face charges of copyright infringement while no-one claims he has copied anything

Not right!

Posted in digital economy, culture, copyright, LibDem, uk, extradition, politics, internet, law, technology | No Comments »

21 Apr 2012 by Dave.

It seems the Liberal Democrats are gearing up to oppose the extradition of Richard O’Dwyer. Good. He shouldn’t be extradited; it’s not the asynchronous nature of the Anglo US extradition treaty which is the problem here. In order to be extradited, you need to have a case to answer that you have broken a serious law in both jurisdictions.

O’Dwyer ran a web site that published, it would seem, crowdsourced links to copyrighted entertainment content. This originally had a .net domain, and when this was seized by the US Customs, he transferred his site to the .cc top level domain. .cc does not require a US regulated registrar.

It is alleged that O’Dwyer’s actions contravened the UK’s Copyright Designs and Patents Act 1988. The following section of the law is quoted in the Westminster Magistrates judgement, delivered by Judge Purdy sitting alone,

“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 states that the EU’s E-Commerce Directive creates a “mere conduit” defence for people who do not “initiate, select the receiver or select or modify the transmission”. This is the defence successfully used by tv-links in the quoted case, R vs Rock & Overton. The judge in that case ruled that linking sites have a “mere conduit” defence. This case was reported widly and at Torrentfreak in an article entitled, TV-Links Triumphs With Landmark E-Commerce Directive Ruling

Judge Purdy in Westminster argues in his judgement that there are material differences,

• the level of control exercised by O’Dwyer
• the fact that he acknowledged that many of the links were copyright infringing,
• and repeats the US Government’s lawyer’s statement that O’Dwyer curated the membership of the site, constraining and enabling individuals to post links to the site. (The Judge uses the word vetted.)

But despite these material differences, if you agree they are material, how the judge gets from the precedent that it depends on,

“making available”

and the Rock & Overton, the TV Links case judgement, which clearly came down on the side that linking is legal because the linker does not “make available” content and gets to,

“I have endeavoured to weigh these subtle distinctions. The diagrams of how as a matter of electronic mechanics (if I may term it) the TVShack websites actually operated favour HHJ Ticehurst’s restrictive construction. To my mind there is much in the distinction factually, always remembering these matters are allegations of conduct which a trial court alone can resolve – that Mr Jones contends between the instant matter and Rock & Overton. I also have in mind the mischief Parliament had in mind. Accordingly in my judgement I am satisfied the conduct alleged in the instant request meets the dual criminality test and would be an offence in this jurisdiction.”

Also in order to remember that a trial court is the place to determine the substance of allegations and their breach of law, different jurisdictions will come to different conclusions.

In conclusion, I make two points,

• to understand what’s happened here, read the judgement, the judge powerfully quotes Rock & Overton as stating that it is only the content hosting sites that are guilty of infringement, but he finds material reasons not to apply the precedent.
• reading the BT case judgements, while much longer, the arguments were easier to follow, much more of the law was quoted, and the way the judges came to their conclusions was much clearer. I feel that Arnold and Parker would have explained the legal reasons why the difference in control, the acknowledgement that much content was infringing & site membership curation makes a material difference to the application of the precedent. To me an evidence that a Judge with experience of the alleged crime,rather than extradition should have sat on the bench for this one.

It’s not really very satisfactory.

Teresa May has agreed the extradition, so I am not sure what happens next. There is a petition at Julia O’Dwyer’s web site, and they ask you to write to your MP and to David Cameron, the Prime Minister.

Posted in digital economy, culture, copyright, LibDem, uk, extradition, politics, internet, law, technology | 1 Comment »

16 Jan 2012 by admin.

The White House, in a reply to a petition on its e-petitions site calling for them to oppose the current legislative attempts to censor the internet in the name of anti-piracy says, among other things,

“Any effort to combat online piracy must guard against the risk of online censorship of lawful activity and must not inhibit innovation by our dynamic businesses large and small. Across the globe, the openness of the Internet is increasingly central to innovation in business, government, and society and it must be protected. To minimize this risk, new legislation must be narrowly targeted only at sites beyond the reach of current U.S. law, cover activity clearly prohibited under existing U.S. laws, and be effectively tailored, with strong due process and focused on criminal activity…..”

It adds,

“We must avoid creating new cybersecurity risks or disrupting the underlying architecture of the Internet. Proposed laws must not tamper with the technical architecture of the Internet through manipulation of the Domain Name System (DNS), a foundation of Internet security. Our analysis of the DNS filtering provisions in some proposed legislation suggests that they pose a real risk to cybersecurity and yet leave contraband goods and services accessible online. We must avoid legislation that drives users to dangerous, unreliable DNS servers and puts next-generation security policies, such as the deployment of DNSSEC, at risk.”

It’s a shame they didn’t come to this conclusion earlier and continued to permit the US Trade Representative and the US’s Embassies the world over to lobby and bully for Hollywood’s laws and to seek extradition clearly non-criminal behaviour.

I demand that the US Government withdraw their extradition request for Richard O’Dwyer; its not in-line with the policy above. O’Dwyer is not a criminal; links are legal in the UK. (So actually, it is my view that foreign nationals should not lobby the US Government, just as I do not expect foreign nationals, or tax non-domiciles to finance politics in the UK . I have,however, signed one anti-SOPA petition; it was clearly labelled as a global initiative, so I would ask my US friends and comrades to take up O’Dwyer’s case. )

It is a disgrace that the White House can grandstand for its own fundamental rights and laws and its own business innovation while funding an oppressive lobbying regime and the legal pursuit of hobbyists.

It is a disgrace that British politicians and Judges, spinelessly permit this abuse to occur.

It is a disgrace that American legislators are prepared to attack the freedom of speech for the rest of the world in order to protect the super-profits of billionaires.

Posted in digital economy, culture, copyright, white house, press freedom, extradition, politics, internet, law, europe, technology | No Comments »

25 Feb 2011 by Dave.

So earlier today, UK Human Rights blog reported that the UK courts stated that Sweden’s application for the extradition of Julian Assange was valid and that he should be returned in custody to Sweden. I thought and hoped the case would hinge upon the fact that the Swedish prosecutors had not charged Assange and as such the UK would reject the extradition. The European Arrest Warrant should not be allowed, and I understood wasn’t permitted unless there is a case to answer in court. It seemed to me that it had been issued by the Prosecutor’s office in order to “help them with their inquiries”.

The UK’s ancient “Habeas Corpus” rights today ensure that people can only be held for a very short period of time before being charged, unless the courts permit longer due to terrorism concerns, the result of a shameful piece of legislation by the last Government.

I am not sure we should extradite anyone to permit questioning, i.e. we shouldn’t allow foreign police to go trawling for evidence in a way that we deny our own police.

So advice to Mark Stephens, “Stop fannying around about fitness for office, look at the case; are they ready to prosecute or not?”

I am afraid if they are, games up!

Posted in assange, wikileaks, european arrest warrant, extradition, sweden, innocence, law, europe, politics | 2 Comments »