About four years ago Richard O’Dwyer, a computing student at Sheffield Hallam University, began a website registered as TVSHACK.net. It “posted links to pirated material. It did not directly host any files, which meant, according to the student’s lawyers, that it acted as little more than a Google-type search engine and did not breach copyright.” The US Immigration and Customs Enforcement (ICE) seized the domain name in July 2010 and subsequently TVSHACK.cc in November. (Seizure must be challenged with ten business days, difficult for someone outside the U.S.).
The defence team pointed out that the only UK prosecution of a similar site, TV-Links, ended last year with the case being thrown out. [In Europe, copyright infringement requires that the copyrighted material themselves be hosted on the website in question.] O’Dwyer has never been to the U.S. In his case, UK authorities did not attempt to prosecute for copyright infringement. The U.S. Department of Justice argues the U.S. has world-wide jurisdiction over all .com and .net domain registrations. Both registries are operated by Verisign under contract with the U.S. Department of Commerce’s National Telecommunications and Information Administration. Verisign is based in Virginia.
In July, ICE’s “assistant deputy director told the Guardian that ICE would now actively pursue websites similar to TVShack even if their only connection to the US was a website address ending in .com or .net.” Those familiar with the operation of the Internet know that traffic between two U.K. websites would not flow through the U.S. The domain names—TVShack.net for example—would yield only an Internet Protocol numeric address that determines routing of the message traffic.
In addition to arguing that registration of a domain name in the U.S. is sufficient to give jurisdiction, ICE also argued jurisdiction because the referenced materials had a U.S. copyright. Unlike the U.S. interpretation of the law, an index site—one that refers to rather than contains material—does not violate European law. In a similar case:
Judge Ticehurst gave his judgment, announcing that TV-Links had won their case. He ruled in detail for the first time in a Crown Court in relation to Section 17 of the European Commerce Directive 2000, stating that Section 17 indeed applied and afforded TV-Links a complete defense in criminal proceedings in England and Wales for their linking to other web sites. In a nutshell and to coin a familiar phrase, the site was deemed a mere conduit of information
But on January 13, the UK district judge, Quentin Purdy, ruled that O’Dwyer should nonetheless face trial in the U.S. “There are said to be direct consequences of criminal activity by Richard O’Dwyer in the USA, albeit by him never leaving the north of England,” Purdy said. “Such a state of affairs does not demand a trial here if the competent UK authorities decline to act, and does, in my judgment, permit one in the USA.”
Now the extradition treaty itself has been criticized. The Daily Mail reported:
Former Liberal Democrat leader Sir Menzies Campbell yesterday attacked efforts by the U.S. to extradite a British computer student for trial.
The QC said the extradition treaty between Britain and America was “never intended” for people like Richard O’Dwyer, whose offences are not even a crime in this country.
Sir Menzies’ comments have extra weight because he is leading a review of the UK’s extradition arrangements on behalf of Liberal Democrat leader Nick Clegg.
The U.S. approach may have some unintended consequences:
- Websites may re-register outside U.S. jurisdiction and practices, especially when, as in the UK, indexing sites are not illegal. There already are examples.
- Websites that do provide copyrighted materials—Bit Torrent sites are estimated to provide 50% of movies and music subject to copyright—will begin to encrypt these transmissions. Early this month Torrent Privacy was introduced. The software addition permits any Bit Torrent site to encrypt their transmissions. The software uses the same encryption technology and level of security during transmission typical of websites that handle financial transactions, including ordering goods.
- There is now are conflicts between U.S. law and the provisions of U.S. extradition treaties as practiced and the European Union Directives on electronic commerce, copyrights in the information society, enforcement of intellectual property rights and processing of personal data and the privacy in the electronic communications sector taken collectively.
- The O’Dwyer case may be motivation for countries to review their free trade agreements and extradition treaties with the U.S. The protection of U.S. intellectual property has been a major provision of recent free trade agreements with Panama, Columbia, and Korea.
U.S. Internet Domain Registries have become an enforcement agent. In a December Intellectual Property Magazine interview Verisign’s Pat Kane said: “I think the registry operators will always have to live within the laws of the jurisdiction in which they operate in. … When it comes to content take down, the reality is that the registry operator doesn’t end up taking down the content. We basically remove a route that gets to that content, and if you want to have real effectiveness from a take down it really must go to the hosting company. For a lot of websites out there, there are multiple routes than go through multiple top-level domains.” He was careful to say that “we don’t identify [infringing] content and we don’t act upon content.”
Germany has taken a different path to protect intellectual property. Indexing is not a crime. The copyright holder first identifies specific infringement, and then the copyright holder may seek a reasonable license fee. For the major U.S. studios this fee has been between 500 and 1000 Euros or US$ 650-1,300 (unlike the multi-million dollars claims in the U.S.) The typical response has been to pay the license fee. This avoids the frequent intense enforcement and litigation found in the U.S.
Most U.S. colleges and universities have domain names registered with EDUCAUSE using .edu as their top-level domain. EDUCAUSE operates the education domain under an agreement with the U.S. Department of Commerce. On September 11 of this year it was extended through 2016. EDUCAUSE is subject to the same enforcement actions as Verisign.
Internet search providers and higher education are vulnerable to demands for enforcement. All of these websites have, intentionally or not, material subject to copyright. Faculty and students, intentionally or not, may post materials subject to copyright. A copyright holder can seek to “take down” a site that, under current U.S. practice, only points to a source. For example a posted syllabus can point to copyrighted articles, books, movies, audio, and even, under U.S. law, blogs. Institutions need to have a way of removing content and links to external websites before court action seizes the domain name and deletes references to the site by U.S. based search engines.
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