[mixmax]

From the article it seems that this guy ran a search engine which might or might nor be illegal in the United States. However, he is British, most of the visitors are British and the servers are not in the United States, yet the US wants him extradited and tried in an American court.

This of course begs the question: If an American is running a site hosted in America with mostly American visitors how would the US react if a foreign government wanted to extradite him and possibly put him in jail for many years?

Probably not well.

[aes256]

> From the article it seems that this guy ran a search engine which might or might nor be illegal in the United States. However, he is British, most of the visitors are British and the servers are not in the United States, yet the US wants him extradited and tried in an American court.

The site was not a search engine.

It may have had a search function, but the links were added manually by contributors (who O'Dwyer selected), and O'Dwyer exerted a great deal of control over the content that was included on the site.

It was almost certainly illegal in the US (authorising copyright infringement). A UK judge has also ruled the allegations, if true, would also constitute an offence under UK law (O'Dwyer's editorial control over the site prevented him from using a "mere conduit" defence) and thus approved the extradition.

O'Dwyer is bang to rights as far as the law currently stands. At this point it's more a case of challenging the absurdity of the law (simply linking to infringing material being an offence) and the absurdity of extraditing a young man to be tried in a foreign court under a foreign jurisdiction for such an offence.

[mibbitier]

> A UK judge has also ruled the allegations, if true, would also constitute an offence under UK law

Then he should be tried in the UK.

[aes256]

> Then he should be tried in the UK.

As it stands, the Crown Prosecution Service (CPS) in the UK have shown no interest in prosecuting O'Dwyer, but US authorities have.

Perhaps O'Dwyer should be begging the CPS to prosecute him...

[mixmax]

so if an American did something that was illegal in Pakistan and the US had no interest in prosecuting you'd find it natural that an American citizen should be extradited to Pakistan and prosecuted there?

That's basically your argument.

[aes256]

As reitzensteinm pointed out, I'm not expressing my own opinion either way.

I'm simply pointing out that, under the current extradition treaty between the UK and US, O'Dwyer doesn't have a leg to stand on. Those in disagreement with the course of proceedings need to work to change the system (e.g. removing the offence of facilitating copyright infringement, if you disagree with the principle of people being prosecuted for simply linking to infringing material) rather than seeking an exception for a particular case.

I think the point you were trying to elicit with your Pakistan example is that US citizens should not be extradited to Pakistan to face charges there for things that do not constitute criminal offences in the US. This is taken care of by the 'double criminality' clauses that most countries include in their extradition treaties.

O'Dwyer is in the somewhat unique position that, although it has been ruled that the allegations against him, if true, constitute criminal offences in both the UK and US, the former has shown no interest in prosecuting, but the latter has, so he is facing extradition...

[reitzensteinm]

You missed the GP post (which was also his). He said:

"At this point it's more a case of challenging [...] the absurdity of extraditing a young man to be tried in a foreign court under a foreign jurisdiction for such an offence."

Discussing the law and its implications as it stands should not be taken for implicit support or approval, but it seems to be far too often around here.

Don't shoot the messenger.

Edit: I took out the obtuse bit, since mixmax said he didn't see it. (I can't reply to him yet).

[mixmax]

maybe you're right - I didn't catch that.

Apologies to aes256 if I misread his comment.

[jahewson]

No, the act has to be illegal in the UK too in order for the UK to extradite one of its citizens. e.g. you can't be extradited from the UK for insulting a Thai monarch.

[ashconnor]

The CPS has the discretion to prosecute a case if they deem it within the public interest, so how is this case not now within the public interest? Even if it is only to halt the extradition process.

[mmaunder]

That's actually an interesting suggestion. It would force the UK to take a position on the issue and if he's found not guilty, it would be very clear the UK and USA are at odds on the matter.

[arethuza]

Which is the approach the French, Germans, Russians, Austrians, Chinese, Japanese etc. take.

[See link below]

[cabalamat]

> A UK judge has also ruled the allegations, if true, would also constitute an offence under UK law

A questionable assertion, given that:

1. in the only BitTorrent tracker case to have come to court, Oink, the defendant was found not guilty http://www.telegraph.co.uk/news/uknews/crime/6998784/Oink-mu...

2. the CPS (UK prosecuting authority) regard running a BitTorrent tracker to be "a civil rather than a criminal matter" http://www.telegraph.co.uk/technology/news/8345801/Prosecuto...

[aes256]

> A questionable assertion

It's not my assertion, but that of District Judge Quentin Purdy:

> The judge agreed with John Jones, barrister for the United States government, that “because he was intimately involved in deciding who was allowed to post links on the TVShack websites, which links would be posted”, Mr O’Dwyer’s alleged conduct was a criminal offence under British copyright law.

> In its argument the defence had cited the 2010 case of TV-Links, a website that offered a similar directory of links to pirated material to TVShack. The judge found it was acting as a “mere conduit” and dismissed the criminal charges against the two men who operated TV-Links.

> Judge Purdy however found Mr O’Dwyer had exercised too much control over TVShack to successfully claim the same defence.

— http://www.telegraph.co.uk/technology/news/9013803/Student-R...

[jahewson]

Hmm. "authorising copyright infringement" - that's not a concept that exists, especially when we're talking about links. Perhaps you mean "aiding" or "facilitating"?

[aes256]

Apparently it does exist, although it's not well-defined under UK law:

"Iain Connor, who works for Pinsent Masons, the law firm behind OUT-LAW, said that provisions within the UK's Extradition Act would give the legal means for suspected criminals to be summoned to the US.

The UK-US extradition treaty agreement allows either country to surrender a criminal suspect to the other if the crime carries a minimum punishment of a year's prison sentence.

"US companies are likely to try and secure a conviction in the US where they know that they could succeed on the basis of an offence of 'authorising copyright infringement' which in the UK is not a well defined offence," Connor said."

— http://www.out-law.com/page-12056