The World Conference on International Telecommunication (WCIT) and Richard O’Dwyer

On Monday, delegates from 193 countries began meeting in Dubai at the World Conference on International Telecommunications. The resulting International Telecommunications Regulations (ITR) could change the operation of the Internet. Russia Today summarized the event as “Free Internet=American Internet?” Intense lobbying by Google and Russia’s 17^th November  proposal focus on retaining the current Internet governance structure versus one based on national and international authority over the Internet.

A name shaping the discussion that will never be mentioned is university student Richard O’Dwyer.

O’Dwyer is a 24 year old student at Sheffield Hallam University in the UK. He became a test case when the U.S. government insisted on extraditing him for “contributing to copyright infringement.” His website had links to movies; no infringing materials was found on his site. The U.S. Department of Justice made these assertions, as interpreted by Internet bloggers:

• The U.S. has the right to terminate Internet access by seizing the domain name (and therefore Internet routing instructions) for any domain registered in the U.S. or whose Domain Name Service routers are in the U.S.
• No one may display links to sources of copyrighted materials—including books, journals  and films—on their website. This is “contributing to copyright infringement”; a criminal offense according to the U.S. Department of Justice. (And threatened 10 years in prison for Richard O’Dwyer).
• If the website operator receives any income, including incidental income from advertising on the website, then DMCA (Digital Millennium Copyright Act) “takedown notices” are not required before initiating criminal prosecution.

And more important to the WCIT

•  The violation of U.S. copyright law anywhere in the world is a crime for which a foreign citizen may be extradited to the U.S. for criminal prosecution.

ICANN (Internet Corporation for Assigned Names and Numbers) is the organization responsible for assigning Internet names—e.g. google.com—and maintaining the links between those names and the Internet IP address of the computer server to respond. ( Internet Assigned Numbers Authority (IANA), a “department,” provides these services). ICANN’s authority is currently based on a contract from the U.S. Department of Commerce. ICANN has developed an international organization and policies for these assignments. However, the U.S. Department of Justice may “seize” a domain name without consulting ICANN and without being required to seek court approval. Russia and China, and many others, seek to transfer that authority from the U.S. Department of Commerce to the International Telecommunications Union. This is one of the major issues of the current WCIT conference and remains a key issue from U.S. v O’Dwyer.

As the New York Times observed, “Richard O’Dwyer … found himself in the middle of a fierce battle between two of America’s great exports: Hollywood and the Internet.” “The case is the government’s most far-reaching effort so far to crack down on foreigners suspected of breaking American laws.”

For higher education it signals more students may find themselves as defendants for Internet activities they considered legitimate.

The U.S. was able to get U.K. approval for O’Dwyer’s extradition because, as the Magistrate’s Court ruled:

There are said to be direct consequences of criminal activity by Richard O’Dwyer in the U.S.A. albeit by him never leaving the north of England. Such a state of affairs does not demand a trial here if the competent U.K. authorities decline to act and does, in my judgment, [therefore] permit one in the U.S.A.

Bringing criminal action against O’Dwyer had several advantages over selecting a firm in the U.S. as defendant. The case would not be extensively covered by the U.S. press. O’Dwyer did not have adequate financial resources for a lengthy and complex defense. Yet the enforcement action would, at least temporarily, satisfy interests in Washington DC and London that aggressive action was being taken to protect a “Hollywood export.”

O’Dwyer’s interpretation of copyright law several years ago is consistent with surveys of student punderstanding. Without guidance additional students could be similarly prosecuted.

The WCIT delegates are aware of the events last year when protests by youth blocked enactment of SOPA and PIPA in the U.S. and ACTA in the European Union. Student protests have become an effective political force. The international Telecommunications Union (ITU) does not want using the Internet Domain Name Service as a political vehicle for trans-national copyright enforcement that could attract political action by youth.

Last January there was a “global outcry against the proposed US legislation, SOPA and PIPA, cracking down on copyright infringement.” The  Hollywood Reporter quoted Motion Picture Association of America (MPAA) CEO Chris Dodd and commented:

It’s a watershed event, what happened,” Dodd admitted, noting that opponents’ “ability to organize and communicate directly with consumers” was a game-changing phenomenon that he hadn’t seen in more than three decades in public office. [National Association of Theatre Owners CEO John]Fithian agreed, saying that the turnaround in November was “the greatest backlash I’ve ever seen. This was historic.”

By shutting down Wikipedia for one day in January, founder Jimmy Wales demonstrated how reliant the public was on Internet sources of information, and the political power he had. In June he “made a rare political intervention to call on Theresa May to stop the extradition.”  More than 253 thousand have signed the petition at change.org. Likely influenced by Wales’ action, the U.S. has now agreed to a “deal” that avoids extraditing O’Dwyer without resolving the issues.

The UK Home Office’s “assessment [of the UK’s extradition arrangements] found little favour among Conservative and Liberal Democrat backbenchers. In opposition, both parties campaigned strongly against the “lopsided” nature of the UK-US treaty.” News from the O’Dwyer case led to public awareness of the diverging political positions of the UK coalition government.

Students are familiar with the information technology and use it constantly. Surveys show students have an interpretation of copyright law and its application that differs from the motion picture industry associations; magazine and journal publishers remain silent. At the same time students have increased political power to prevent additional legislation.

A recent joint report of the UK Intellectual Property Office and UK National Union of Students recommended academics and module tutors incorporate intellectual property law into their courses. It also suggested university knowledge transfer offices and legal staff have a role in IP guidance. This role cannot be adequately fulfilled without a clear interpretation of the law of the U.S., European Union and other ITU participants. The only alternative now is to describe for students the uncertainties and risks as they post, link, or use copyrighted materials.

The WCIT conference participants are aware of the U.S. use of the network-critical Internet Domain Name Service (DNS) for copyright enforcement and associated “collateral damage” to non-infringers. They are also aware of the opinions and worldwide political power of youth. Although ITU is a technical organization, national opinions on appropriate use of the Internet will be expressed on who decides—and that has become political.

This confrontation can spill over to the classroom as more students become defendants or activists. Academics, faculty, and administrators need to be prepared for the effects of such a confrontation.

O’Dwyer summarizes his experience in a four minute video from The Guardian here.

 Late Development, 6 December 2012 18:13

Richard O’Dwyer appeared late today in the U.S. District Court for the Southern District of New York. In his five-minute appearance he stated his name and said he understood the three-page agreement.

Under the terms of the “deferred prosecution agreement,”  O’Dwyer pledged he would not break any laws and would remain in contact with a U.S. correctional officer over the next six months. He also has to pay the equivalent of £20,000 ($32,100) his website earned from advertisers. According to the agreement, “The money will be used to ‘repay victims whose copyrights were infringed by TVShack’” That is, the motion picture copyright owners.

A video of O’Dwyer’s 2 minute 44 second interview following his court appearance is available here.