[x-pubpol] UK/US: Student who ran file sharing site TVShack could face extradition to US

[Joly MacFie]

http://www.guardian.co.uk/law/2011/jun/17/student-file-sharing-tvshack-extradition

It is the UK's 2003 extradition agreement with the US, campaigners say,
which is at the centre of the problem. Much criticised in the case of
McKinnon, it currently contains no provision for what is known legally as
forum, which would allow a UK judge to consider whether a case is best
heard in the UK or abroad.
O'Dwyer's mother says she is baffled why a case with no direct links to the
US – her son last went there aged five – should be heard in the US. Her
lawyers agree.

"The (computer) server was not based in the US at all," O'Dwyer's
barrister, Ben Cooper, who has also been heavily involved in the McKinnon
case, told Tuesday's hearing at Westminster magistrates court. "Mr O'Dwyer
did not have copyrighted material on his website; he simply provided a
link. The essential contention is that the correct forum for this trial is
in fact here in Britain, where he was at all times."

Some experts on digital law question whether providing links to illegal
downloads rather than directly hosting them would even constitute an
offence in the UK. In February last year charges involving fraud and
copyright against a similar site, TV-Links, were dismissed after a judge
ruled that linking alone was not illegal.

"If it's an offence under UK law, then it has to be prosecuted and tested
under UK law," said James Firth of the Open Digital Policy Organisation
thinktank. "If there is no offence under UK law, then there is no 'victim'
to copyright infringement and no case for extradition."

Civil liberties groups have also questioned why the government has not
swiftly amended the extradition law by enacting a pre-existing but dormant
forum clause, given that both coalition parties were heavily critical of it
while in opposition. In September last year the home secretary, Theresa
May, instead ordered a wider, year-long review of all extradition laws.

"The government hasn't acted in time. This is exactly what we warned
against," said Isabella Sankey, director of policy for Liberty. "Enacting
the forum amendment would have been quite simple. It's not that we're
arguing that in every case where activity has taken place here we shouldn't
allow people to be extradited. But we should at least be leaving our judges
some discretion to look at the circumstances."





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