GUEST POST- What’s the Incentive for Creating a Successful Search Engine in the UK? 10 Years in a US Jail!

23-year old UK student, Richard O’Dwyer, has been issued with a US Extradition Arrest Warrant on copyright infringement charges and is facing up to 10 years in a US prison if the extradition request is granted.  I’ve only summarised the main points of Richard’s case here to help me get my point across but there are some good articles on the web that can explain Richard’s story fully and much more accurately than I can so I strongly urge you to do your own research and read them yourself to find out the full story.  You may want to start by reading his mother Julia’s blog.  And please show your support by signing the e-Petition.

As part of a personal project to improve his web development skills Richard created a website called TVShack.  It acted very much like an advanced Google search and returned the most popular links searched for by users of the site to episodes of TV programmes or movies.  

The site gained in popularity and as the number of users increased he started to receive offers to host pay-per-click ads on his site, mainly from US companies, some of which he accepted.  This slowly started to generate him some revenue, which he then used to subsidise his living costs while studying.  

For reasons of clarity, the site did not host any content to download, pirated or otherwise, it merely acted as a place to find links; it was hosted on a web server based in the UK but it was registered on a .net domain, which requires registration through US Internet domain registration body, Internic; Richard has no links to the US other than one holiday visit when he was very young.

The nightmare started for him in November 2010 when he received a visit from UK police, accompanied by US customs and excise officials, and was arrested on bail pending charges of copyright infringement.  The charges were then dropped by the UK police when he presented himself at the police station for bail early 2011.  However, he was immediately rearrested under the US/UK Extradition treaty 2003 and has since appeared at Westminster Magistrates court. 

At his first hearing to consider the actual offence and in the likelihood of the Judge’s limited understanding of the Internet, and exactly what linking is, a 2-minute video explanation was produced in order to provide a less technical explanation, you can view here. The US presented its confused counter – argument. At this hearing the Judge accepted that in Richard’s case the argument that “linking” is not an offence was a strong one and indeed the US prosecution concurred with this too. The judge has adjourned his final decision until 13 January 2012 so he can consider the finer details further.   The Parliamentary Backbench Committee secured a debate in the House of Commons recently, which has led to a Home Office Select Committee debate where the Committee interviewed David Bermingham, one of the three men extradited and convicted in the US for their involvement in the Enron scandal; the US Ambassador to the UK was also invited but was unable to attend.  Bermingham said the treaty was unfair in that the US constitution forces other governments to hand over evidence as proof of probable cause before agreeing to extradite someone but UK law does not offer the same level of protection to UK citizens facing extradition to other countries.  He also pointed out to the Committee the astronomical defence costs associated with a UK citizen fighting a case in the US, stating the court case can often bankrupt defendants in the process of proving their innocence, without ever recovering the cost even if found not quilty, something former banker Bermingham was fortunate enough not to have to endure but that he admitted would be the likely outcome for most people extradited.

So not long now for Julia O’Dwyer to wait to see if her only son will be whisked away to face pre-trial incarceration in the US to then face the full force of Hollywood and the US law enforcers!  His website has long since been seized by the US ICE, all his computer equipment was confiscated and his finances frozen. The two charges brought against him each face a separate maximum term of 5 years in prison, potentially 10 years for doing what any Internet directory or search engine does!  

There are many grey areas in this case so again for reasons of clarity here’s what I see as the problems.

First we have a young man who may or may not have committed a crime.  There is already a precedent case in the UK to suggest that what Richard did does not in fact constitute copyright infringement in this country.  If he committed a crime whilst in the UK then UK judges using UK laws should decide if he has done so and if so what the appropriate punishment should be.  If it was a prison sentence, he would have to accept the consequences of the judgement but it would be with the continuous support of his friends and family who could visit regularly.

But it isn’t as black and white as that.  In this case we have the absolute abuse of a hastily drafted and implemented treaty between the UK and US that came about shortly after the 9/11 bombings of the twin towers, and which was intended, according to its backers in the Houses of Parliament, to simplify the transfer of suspected terrorists between the two allies.  It has long been argued that this treaty is heavily biased in the favour of the US who no longer tries to hide the fact that they are using it to cast their legal net much wider than suspected terrorists.  The US officials have no obligation to present evidence held against the defendant and there is no provision in the treaty for UK judges to demand to see such evidence before an extradition case is heard; to date no application for extradition to the US has been refused by a UK court.   What is wrong with trusting our own legal system to judge whether someone should be sent elsewhere to stand trial?  Is it so corrupt, so far from US principles that our judgement cannot be trusted?

We need immediate reform of the extradition treaty and you can sign the petition to help to get this situation in the faces of the UK politicians here.   Great efforts are being made to raise awareness but much more is needed to get them to fight the US on this.  Richard is by no means alone in his fight, there are other cases, just as ludicrous, including the case of Babar Ahmed who has been held without charge for over 6 years while his defence demand to see the evidence against him.  There is also the renowned case of Gary McKinnon, the Asperger’s sufferer who took advantage of a security flaw in the Pentagon’s computer network and went looking for UFO files; they probably would never have discovered he had even hacked into the system had he not informed them himself about the security flaw!  He has spent 10 years appealing the decision to extradite him to face what could be up to 130 years in a US jail without any chance of parole before he had served at least 50% of his sentence, this according to Bermingham’s testimony to the Home Office Select Committee. 

This precedent does not bode well for Richard who, without any family/sponsors would be held in detention until his case was heard, without any guarantee of a time frame of when that would have to happen by or the support of family and friends who would not be able to afford to visit him very often.  Material he needs for his defence would have to be requested from the authorities in the UK, costing money his family can ill afford.  He will be transported to an unfamiliar environment, a fish out of water in a UK prison but if the media coverage is anything to go by, and Gary Mulgrew’s account in his recent book, “One Man Gang” is accurate, a US jail would be considerably worse.  This is a flagrant abuse of Richard’s human rights and is hugely disproportionate action given the nature of the alleged crimes.  For goodness sake, he probably earned less in 3 years than Brangelina earn in a lunch break!

I fear greatly that if we allow the treaty to be used as the vehicle to turn over our citizens whenever the US government wants to flex its muscles, the same fate could await over a quarter of our young people who would be directly in the firing line; this is reportedly the largest demographic of Internet users who admit to having “illegally” downloaded or shared a movie or music and every single one of them could face a US prison sentence or end up paying massive financial penalties to US companies.  The current strategy is to make headlines by making examples of those seen to be flouting copyright laws with the hope that this will deter others from breaking the law.  We see this pressure in other well documented alleged cyber crime cases such as the ongoing trial of Bradley Manning, accused of leaking classified information to Wikileaks, resulting in vicious even inflammatory reactions from US politicians and the US government forcing companies to shut off funding streams to the Wikileaks site and call openly on national TV for the assassination of Wikileaks’ founder Julian Assange. 

The propaganda machine is in full force in the US with increasingly strong rhetoric from the mainstream media on the likelihood of terrorist attacks being carried out via the Internet, inflating all sorts of fears in the general population.  When you add this to the grossly exaggerated claims over the loss of income and jobs related to digital piracy and copyright infringement it is inevitably going to invoke the response for more government control!   Something of course that they are only too happy to propose!

So, who’s behind the extradition warrant? In Richard’s particular case it’s the US film industry who claim he and other “rogue” pirate sites, have potentially lost them billions in revenue; the figures used in the campaign to fight piracy is an estimated loss of over $26billion a year but a more conservative estimate of half a billion dollars is put forward by opposition as being closer to the real figure.

Frances Moore, Chief Executive of IFPI (International Federation of the Phonographic Industry), an organisation who according to their website “represents the recording industry worldwide with some 1400 members in 66 countries and affiliated industry associations in 45 countries”, wants governments worldwide to take advantage of the growing collective voice of discontent of recording artists to the loss of revenue through illegal downloading of songs and movies, to seize control of the Internet.  In Moore’s own words “digital piracy, and the lack of adequate legal tools to fight it, remains the biggest threat to the future of creative industries”.   She cited the potential loss of up to a million jobs in the creative industry before 2015 if piracy isn’t addressed and a potential loss of billions of dollars in revenue.   This may well be the case but they are assuming that everyone who has a pirate movie or CD would have bought it, not the case.  Many argue that by allowing music and movies to circulate freely on the Internet, or offering easy, cheap access to it would benefit the artists by exposing their products to a wider audience than conventional marketing methods can achieve, thereby converting first-time listeners to future fans.

My personal opinion is that restricting information is an outdated business model and it is the long-established businesses fearful of losing their fiercely guarded share of the market, who are stubbornly refusing to believe their time is up; it’s only the big billion dollar businesses that stand to lose, everyone else will gain.  Moore neglects to discuss the monopoly held by industries such as music, film and software and how it stifles innovation within the very industry it is professing to protect.   Once people start to realise that a musician will always create music, an artist will always paint, an actor will always act, an engineer will always build, an entrepreneur will always have a new solution to a problem, and that they will do it solely for the love of what they do, not for money and certainly not for profit, then we will see true innovation. 

Where is the heated discussion about producing more innovative technology to deliver content that is deemed copyrighted, or safer operating platforms that put the user in control of what the software does rather than the software controlling what the user does, such as that advocated by the Freedom Software Foundation.  This type of solution would definitively make the user responsible for any actions undertaken!   Or what about the abolition of the copyright laws altogether, why is this not considered seriously?  We need to move away from draconian patents and copyrights laws and have a full and honest debate about an alternative that gives us more opportunities to use the Internet in the future, not less.  We need to move to a more open sharing policy generally, invent better technology and create new delivery channels, all supported by laws that meet the needs of today’s challenges and allow for greater freedom and competition on the web and encourage innovation.

This time though they may have picked the wrong opponents

I am not alone in my views, in fact two recent bills waiting to be passed by the US Senate and Congress have split the business community in the US right down the middle (see my forthcoming article on SOPA and PIPA, hopefully Jan 2011), with one camp supporting Moore’s view of the need to tighten government control to stop the threat of digital piracy, and the other camp reflecting my own personal view that these pending laws threaten to stifle the free flow of information on the Internet and place the US as the World’s judge and jury on what is copyright and what constitutes an infringement.  So far it looks like common sense may win out and SOPA could well be quashed in the US but it’s still touch, even with Facebook, Google and other major players threatening to “strike” and bring down their own sites in protest!

But what if we hand over a citizen on a platter to the US without them even needing to cite a specific law, even more reason for them to go ahead and cement SOPA in law, with any fear of international kickback to it slightly abated by Britain’s roll over and play dead attitude.  I and many others believe that Richard is being used as a test case for the US to gauge how easily foreign nations such as the UK would be willing to give up its citizens.  If we allow him to become the guinea pig for the US censorship bills we are paving the way for many more cases of our young people facing a very bleak future being US bars and a world where the US decides what we are allowed to see and know, one that is wide open to excessive application or abuse of these laws from future malignant US leaders; their current track record on human rights does not offer much comfort or hope in how anyone deemed suspected of a crime can expect to be treated. 

The request to extradite him for “linking” is an outrageous waste of taxpayers money and a shocking wake up call to exactly what lengths the US are willing to go to in order to assert their authority as the world’s policeman and protect their power monopolies.  The US abuse of an agreement made in good faith when times were tense confirms that any form of control giving the US government broad sweeping powers will be abused again and again, and any precedents set will not be isolated cases. 

If you’re still with me and have managed to get to the end of this epic post, thank you for your patience.  I urge you to get behind Richard’s campaign and sign the epetition to force our government to take this situation more seriously and stand up for the citizens of the UK, tell all your friends, follow Richard’s mother Julia on twitter and retweet her, share links on Facebook, write to your MP, do all you can to raise awareness of the global shift in power happening right under our noses.

I hope that you’ll agree with me when I say that this is not why Tim Berners-Lee gave away his code for free, for everyone in the world to use as he/she sees fit, he fervently opposes SOPA and PIPA, for the very reasons stated in this article.   History has taught us to be cautious and be wary of wolves in sheep’s clothing.   The Internet is not the property of the US government; it belongs to everyone and no one.  We must fight with every ounce of strength to ensure that we do not lose the freedoms that the Internet has given to the peoples of the world. 

Deborah Adshead
12 January 2012 

Many thanks to Deborah for allowing publication of her blog post here, Good Luck with your own blog Deborah x