[governance] NYT: U.S. Pursuing a Middleman in Web Piracy

[Riaz K Tayob]

http://www.nytimes.com/2012/07/13/technology/us-pursues-richard-odwyer-as-intermediary-in-online-piracy.html

July 12, 2012
U.S. Pursuing a Middleman in Web Piracy

By SOMINI SENGUPTA

Richard O’Dwyer, an enterprising 24-year-old college student from 
northern England, has found himself in the middle of a fierce battle 
between two of America’s great exports: Hollywood and the Internet.

At issue is a Web site he started that helped visitors find American 
movies and television shows online. Although the site did not serve up 
pirated content, American authorities say it provided links to sites 
that did. The Obama administration is seeking to extradite Mr. O’Dwyer 
from Britain on criminal charges of copyright infringement. The possible 
punishment: 10 years in a United States prison.

The case is the government’s most far-reaching effort so far to crack 
down on foreigners suspected of breaking American laws. It is unusual 
because it goes after a middleman, who the authorities say made a fair 
amount of money by pointing people to pirated content. Mr. O’Dwyer’s 
backers say the prosecution goes too far, squelching his free-speech 
right to publish links to other Web sites.

Mr. O’Dwyer did not respond to requests for an interview, but his 
mother, Julia, a nurse with the state-run health service, described him 
as a somewhat reserved young man who grew up playing Super Mario games 
on his computer and became devoted to coding. He studies interactive 
media and animation at Sheffield Hallam University and, his mother said, 
long ago spent the money he had made from his Web site.

“He would take his mates to the cinema and pay for them,” she said.

No matter how Mr. O’Dwyer’s legal problems are resolved, the case 
against him reflects the complexities of wrestling with piracy in the 
digital age.

The entertainment industry lobbied Congress hard for the Stop Online 
Piracy Act, or SOPA, which was withdrawn this year after an online 
uproar led by Web companies and their consumers. Another bill on Capitol 
Hill would establish intellectual property attachés in American 
embassies. An international antipiracy treaty, the Anti-Counterfeiting 
Trade Agreement, or ACTA, was roundly rejected last week by the European 
Parliament.

In the last two years, the Obama administration has closed about 800 Web 
sites suspected of piracy, including those that stream new Hollywood 
films. In a widely publicized case, the Justice Department has sought to 
extradite the operators of Megaupload, a site that let users anonymously 
share movies and music, on criminal copyright infringement.

“There is a problem of copyright infringement on the Internet, and 
copyright owners have been struggling over how to deal with that,” said 
Mark A. Lemley, a Stanford law professor who has represented Internet 
companies like Google in intellectual property disputes. “The U.S. 
government is aggressively getting involved in turning what used to be 
civil lawsuits into criminal cases. The combination of that and reaching 
across the border is new.”

The extradition case against Mr. O’Dwyer has turned him into something 
of a cause célèbre. Wikipedia’s founder, Jimmy Wales, is leading a 
crusade to save him, with an online petition that has gathered over 
225,000 signatures worldwide in two weeks.

Still, the British home secretary, Theresa May, approved the extradition 
order in March and said Monday that she would let the order stand. Mr. 
O’Dwyer has appealed; a hearing in Britain is expected this fall.

His lawyer did not respond to requests for comment. The federal 
prosecutors in New York who are handling the case also declined to 
comment. The criminal complaint against Mr. O’Dwyer is sealed.

Mr. O’Dwyer’s story began in 2008 when he set up his Web site, 
TVShack.net, which allowed users to search for and link to other sites, 
including ones that the authorities say showed pirated movies and shows. 
Because the domain name was registered in the United States, it fell 
under the ambit of American law. The government shut down TVShack.net in 
summer 2010.

Mr. O’Dwyer was unbowed. TVShack.net had been growing in popularity, and 
it made about $230,000 from advertising over the course of two years, 
federal prosecutors say.

“America? They have nothing to do with me,” Mr. O’Dwyer’s mother said he 
had told her. He reopened his site as TVShack.cc, which he reckoned was 
beyond the reach of the United States.

A few months later came a knock on the door from the British police. A 
judge ruled that Mr. O’Dwyer would not be prosecuted in Britain. 
Instead, the United States would seek to extradite him.

His mother was stunned. “This is for fugitives and murderers and 
terrorists,” she recalled thinking. “Richard has never fled the scene of 
a crime. He has never left the U.K.!”

A judge released Mr. O’Dwyer on bail. On his mother’s orders, he shut 
down his site, which makes it difficult to tell how it operated.

At the heart of the O’Dwyer case is a question of what to do about Web 
sites that help users find unlicensed content.

According to British court documents examined by The New York Times, the 
Justice Department argues that Mr. O’Dwyer enabled Internet users to 
easily avail themselves of copyrighted material by providing links to 
third-party sites that contained thousands of pirated films and 
television programs.

Prosecutors say that on one day in 2010, his Web site contained links to 
seven films, described as the “most popular movies today,” that were 
still playing in theaters and had not been authorized for distribution 
on the Internet.

Mr. O’Dwyer, prosecutors suggest, was aware the material was 
copyrighted. They cite an announcement on TVShack that urged users to be 
patient with download times because they were “saving quite a lot of 
money (especially when putting several visits to the theater or seasons 
together).”

Ted Shapiro, the Motion Picture Association of America’s general counsel 
for Europe, said the fact that Mr. O’Dwyer had not stored illegal 
material on TVShack itself signaled that he knew how to evade the law.

“The fact that the U.S. government is willing to step up and protect 
content from the film industry and the copyright sector is an amazingly 
important thing,” Mr. Shapiro said. “We are talking about protecting 
things Americans are good at.”

Mr. O’Dwyer’s backers say his site was effectively a search engine. To 
prosecute him, they argue, would set a dangerous precedent — tantamount 
to holding one person accountable for the acts of another.

“Something that lets you find illegal content can also help you find 
legal content,” said Mitch Stoltz, a lawyer with the Electronic Frontier 
Foundation. “When you go after intermediaries, you’re going to shut down 
legal and legitimate speech and commerce and innovation to get at what 
they perceive as illegal copyright violation.”

Peter Decherney, a professor at the University of Pennsylvania who wrote 
the book “Hollywood’s Copyright Wars: From Edison to the Internet,” said 
the O’Dwyer case showed how difficult Hollywood has made it for people 
in other countries to consume American entertainment online.

Sites like Netflix, Hulu and iTunes have limited offerings overseas, if 
any. The demand for American entertainment drives a lucrative 
underground economy of pirated movies and television shows.

“In many other countries, unauthorized distribution is the only form of 
online distribution,” said Mr. Decherney, “and consumers will continue 
to make Robin Hoods out of anyone who can help them get to media online.”



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