US Abuses Copyright and Extradition Law: UK Acquiesces
June 15, 2011 4:44 PM
by Glyn Moody
If you want a vision of the world of global repression and bullying that copyright maximalists are striving to create, try this:
A Sheffield student is facing up to five years in jail if convicted in America for a website which provided links to movie clips.
Let's just look at the component parts of this story.
First, the website was run by a UK national, and hosted in the UK. As the student's lawyer points out:
“The essential contention is that the correct forum for this trial is in fact here in Britain, where he was at all times.”
So what would the situation be here in the UK? Well, a very similar case involving alleged unauthorised links to copyright material played out a few years ago - the famous OiNK trial. Here's what happened:
Lawyers have presented their final arguments in the trial of Alan Ellis. The prosecution slammed the ex-OiNK admin, saying that the site was set up with dishonest and profiteering intentions right from the start. The defense tore into IFPI and countered by calling Ellis an innovator with talents to be nurtured. Today the jury returned a unanimous verdict of not guilty, and Ellis walked free.
Aside from the unanimous verdict, what was notable about the trial was that Ellis was accused of “Conspiracy to Defraud the music industry” - not with linking to copyright material. That is probably because the latter seems not to be a criminal offence, and so it was necessary to find some other charge.
This may also explain why in the latest case there is this extraordinary request for extradition, presumably using the infamous US-UK Extradition Treaty 2003 - the same one being used against Gary McKinnon. As Wikipedia explains:
Controversy surrounds the US-UK extradition treaty of 2003 which was implemented in this act. Considered by some to be one-sided because it allows the US to extradite UK citizens and others for offences committed against US law, even though the alleged offence may have been committed in the UK by a person living and working in the UK (see for example the NatWest Three), and there being no reciprocal right; and issues about the level of proof required being less to extradite from the UK to the US rather than vice-versa.
As this entry explains, This treaty is one-sided because “it allows the US to extradite UK citizens and others for offences committed against US law, even though the alleged offence may have been committed in the UK by a person living and working in the UK”, which is the situation here.
But the trouble with this line of argument is that even in the US linking to copyright material does not constitute criminal copyright inducement. TechDirt's Mike Masnick has this to say on the issue in relation to a similar case:
there's nothing indicating that criminal copyright inducement exists. Yes, the courts have said it's possible in civil cases, but there's no such support for making it a crime. It appears that Homeland Security seems to have just made this part up and assumed that such a crime must exist. That seems rather troubling. In fact, in a paper by law professor Mark Batholemew from a couple years ago, he highlights how contributory copyright infringement does not seem to fit with criminal copyright law, if you look at the history of copyright law and the idea of contributory infringement.
So, to summarise, we have actions that took place wholly in the UK, that don't seem to be criminal offences in that jurisdiction, being made the subject of an extradition request using a one-sided and flawed treaty in order to try someone on charges that don't exist even in the US, as far as anyone can tell.
This seems a clear case of bullying by the US, presumably acting as a proxy for the copyright industries. The idea is presumably to send a signal to anyone outside the US that they are not safe anywhere, and that every means - however dubious - will be used in order to make their life a misery. In effect, it is no better than the copyright trolls that accuse people of downloading copyright materials on the flimsiest of evidence, and whose business model is based on threatening to make life so unpleasant that people are happy to pay a “fee” just to get rid of them, whether or not they are guilty.
This disproportionate action presents us with a foretaste of the world that treaties like ACTA are seeking to create: one where powerful media companies can, through the complaisant US government, simply pluck foreign nationals from any country in a new, banal kind of extraordinary rendition. And all because the preservation of intellectual monopolies is regarded by the US and certain European governments as more important than respecting human rights (as the UN's "Special Rapporteur” pointed out recently.)
It is disgraceful - but not surprising - that the US government is abusing copyright and extradition law in this way, and even more disgraceful that the UK government is acquiescing in this, rather than standing up for its subjects who have been convicted of nothing. If it had any backbone the UK government would tell the US to get lost, and would repeal this completely unjust and one-sided extradition treaty now.