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Lawyer: no hiding place from US for web pirates

pirates

By Nicole Kobie

Posted on 4 Jul 2011 at 09:44

Piracy websites can be targeted by the US and UK regardless of where they're hosted or which domain they use, according to legal experts.

The US Immigration and Customs Enforcement (ICE) agency has been taking down sites with illegal content and targeted one UK student with extradition, despite the content not being hosted in the US.

Erick Barnett, assistant deputy director for (ICE), told The Guardian that any site that uses a .com or .net domain name is fair game, as those are registered through US company Verisign.

"By definition, almost all copyright infringement and trademark violation is transnational," he told the newspaper. "There's very little purely domestic intellectual property theft."

People do not understand the extra-jurisdictional nature of the internet

Iain Connor, a partner in the intellectual property division at law firm Pinsent Masons, said the situation was similar in the UK - but a site need not even use a .uk address to be taken to court, despite a general belief to the contrary.

“You look to where the website’s directed,” Connor told PC Pro. While a web address can be one part of that, courts will also look at what language it's written in, what currency it takes payments in, and who advertising is directed at.

“It’s a myriad of factors which will determine whether a UK court feels it has jurisdiction, because the test for jurisdiction is where the damage is occurring.

“People do not understand the extra-jurisdictional nature of the internet,” he added. “They think, 'I can do it here so it’s okay everywhere'. People need to be aware is that of course the nature of the internet means they can be conducting an illegal act overseas even when the act may or may not be illegal in the country they are based.”

Extradition questions

The issue affects 23-year-old student Richard O’Dwyer, who faces extradition to the US because his site TVShack.net allegedly linked to pirated content.

O’Dwyer’s family and defence have questioned why the US is targeting him when a similar case, over website TV-Links, was dismissed from UK courts. However, Connor suggests the comparison isn’t valid.

“That was a Crown Court criminal prosecution, where the burden of proof was unreasonable doubt. Most copyright cases are done on the balance of probability,” he said, adding that criminal burden of proof is an "incredible" level to satisfy.

"And, criminal cases are not in any way precedent forming… people point to that case, but so what? If I got off shoplifting in the past, does that mean shoplifting is now legal? No.”

And because O'Dwyer's site used the US-based .net domain, US authorities can take action, and will choose to do so in their own courts because they're more likely to win.

There’s a diminishing global sympathy for people who are aggregating other people’s content unless they’ve got a license to do it

"If you’re looking globally and forum shopping for a court that is likely to give you a better result, the simple fact of the matter is, as a US company, dealing with US content, in front of a US court under US copyright law, you’ll stand a better chance of securing the result you want," Connor said.

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User comments

Mockingbird Justice?

The problems start when foreign courts notice that US companies in US courts may/do have advantages that wouldn't be present in the defendent's native countries - and start to question this. If you can't convict in a foreign court, is there possibly a Very Good Reason for this?

At what point does 'advantge' become 'unfair advantage' and Mockingbird Justice?

By ANTIcarr0t on 4 Jul 2011

Correction

“There’s a diminishing global sympathy for copyright lawyers”

By Lomskij on 4 Jul 2011

Apologies for long rant below

"Citing the Newzbin case in the UK, which saw the site banned from linking to illegal downloads," and how did this work out, i believe its back online and posting anything it wants.
And who the hell is this connor guy, and his very "interesting" comments on the diminishing sympathy, i think it is more likely there is diminishing sympathy for people like him (intellectual property lawyers). To be honest if you ask all the people in the street outside your house, i would almost guarantee that 99% of them would have downloaded something off the internet. And i really hate it when they compare the internet situation to the shoplifting case. it maybe the same in terms of taking something which belongs to someone else, but music and films earn a load more money, and people do not like this when for example bono has millions of pounds, a number of huge houses and then goes on and complains about not having enough money, let him try to survive on the average earning in the world, please try that. Of course i am not saying that stealing is good, and this comes to my idea that i have said before and still don't understand why it has not yet been done. Have one website where you pay something like 30 pounds a month (average contract price) for a service which gives you unlimited views of US and UK Tv shows, movies and music, where its all in HD and every month you can keep a few things for yourself. Now i will tell you why we cannot have this in our world, because people are greedy, like right now they rip us off for buying music and movies where they are earning minimal from these sales compared to where most of the income comes from, the concerts that those artists do and cinema tickets. i predict that in the near future no one would pay for music (only pay to go and see the artists live), no one would pay for buying movies since people will go and see films in the cinema and pay there, and later downloaded if they want to see it again. These people like Connor must understand this, and deal with it, by establishing some sort of substitution for sites like newzbin, Why don't they just buyout newzbin and get all the money from there themselves, i mean they complain but don't actually do anything about it themselves.

By mobilegnet on 4 Jul 2011

Amerikan justice is no justice

There are effectively two issues here:
1. How do we deal with IP thefts
2. Is it right to extradite people to USA in such cases.

The answer to 1. is relatively simple. We have UK laws and if a UK citizen breaks them s\he may be prosecuted. This may, or may not result in a conviction.

Extradition to USA is (as they would say) a whole different ball game.
I can see no rationale under the (admittedly one-sided agreement) that would permit copyright theft defendents to be extradited. They can, as UK citizens, be prosecuted under our laws. As your tame lawyer says: "Its an International Problem" and the USA has no monopoly on prosecuting it.

Indeed we should fight tooth and nail to prevent UK citizens being exported to their barbaric and unjust legal system, where only the rich ever get anything resembling justiuce. Even on remand the poor are simply warehoused into stinking jails full of psychopaths and such.

By wittgenfrog on 4 Jul 2011

Minor Mitigation

How about we stop the blatant rip-off that is price disparity?

Software sold via a download medium should be differentially neutral.

Stand up Adobe, I'm looking at you.

By Gogster on 4 Jul 2011

Well......

All the online betting sites had better watch out, gambling is illegal in China.

Online alcohol and pornography sales sites admins had better watch out too, they might find themselves being hauled off to Saudi or Afghanistan.


Utter tosh, all of it.

By Anonymouse on 4 Jul 2011

Blame Tony Blair

He signed us up to a one sided treaty so that the US could extradite terrorists. Even a one sided treaty should have rung alarm bells, but somehow the US extended the definition of terrorism so widely that it includes being mentally ill or offending the US media industry.

Perhaps the current government should rescind the treaty and actually think before implementing the replacement. They could also fire their overpaid lawyers who let the the US get away with this.

By tirons1 on 4 Jul 2011

"who let the the US get away with this"

Unfortunately: we did.

I can't really think what more we could have done to stop it, but we can only blame ourselves for the state of affairs we currently live in.

By Anonymouse on 4 Jul 2011

There's only one answer

The extradition treaty needs to be cancelled.

I was shocked by this Guardian arcticle about pregnant women in the US facing murder charges when they lose their babies: http://revs.me/completelymad

UK citizens need protection from the US legal system.

By revsorg on 4 Jul 2011

If you are not a citizen of a country and not living in that country how can you be subject to that country's laws?

By agnot on 5 Jul 2011

@revsorg

If you're going quote an article in the Guardian please provide a direct link, there's no way I'm going to click on your link, who knows what it might link to.

For anybody interested the article is at;

http://www.guardian.co.uk/world/2011/apr/15/woman-
attempted-suicide-pregnant-accused

And its not mad, its just a very very sad case. The woman tried to kill herself just days before she was due to give birth and in the process took the life of her nearly full term baby. As I say its very sad but had she waited a few days, given birth and then tried to kill herself, what would your opinion be then? Not so easy to be judge and jury is it!

By rjp2000 on 5 Jul 2011

@revsorg EDIT

2nd to last sentence should read;

...to kill herself and the child, what would your opinion be then?

By rjp2000 on 5 Jul 2011

US Extradition.....

....was supposed to be for terrorists.

It is about time our supine government got off its knees and forcibly reminded the US of that fact and, perhaps, could also mention that the US is being far too aggressive to its staunchest ally in pusuing non-terrorist extraditions.

By jontym123 on 5 Jul 2011

One Size Does Not Fit All

Trying to run a single Internet space with the multitude of laws, regulation, interests and opinion that span the globe is at best optimistic, and will always present problems. The USA is not the only country looking to influence ICANN's part of the World Wide Web and if Internet users want something different, then they don’t have to look far to see that there are alternatives.

ICANN's main aims has always been to convince Internet users that they're the only game in town and then try to herd everyone into a tiny part of an otherwise infinite universe. In this respect, ICANN has been quite successful. However, it's rather like telling people that the only place they can shop on the entire planet is your local Safeway (not that one...the other one) and that really…..really, there's nowhere else to go. Of course this is sheer nonsense and it’s understandable that people are starting to look at the alternatives.

Anyone can now create their own set of Top Level Domains at no cost and without reference to ICANN, simply by opting to register NON-ICANN Dashcom (not Dotcom) domain names. Dashcoms are more memorable and relevant web addresses such as "sports-com", “live-music”, "social-network” and even "pc-pro" etc. Here is a part of the Internet that’s totally outside ICANN's control yet able to exist quite happily alongside it. At present, resolution is via an APP, but new ISP links are coming online to negate that need.

It’s only a matter of time before other new options surface, and none of them will have anything to with ICANN.

By Dashworlds on 5 Jul 2011

@rpj2000

Actually the thing I think is mad in the Guardian article is under the subheading "From protection to punishment" - the idea of renegade prosecutors allegedly twisting laws to punish childbearers. Mad that citizens could allow the trust they place in prosecutors to be abused in this way. If this happened in England I would campaign to change it with some possibility that my voice might be heard. What I'm saying is that I don't want to find myself victim of a legal system in which I do not participate, particularly if there is evidence that it does not comply with my personal set of ethics.

By the way - on balance I'm still happy that I shared the link as a redirect. I now know that 29 people read it, and as you indicated, people who don't feel happy clicking a revs.me link would have the wherewithal to use my supporting text to Google for the article (the supporting text was deliberately included for that purpose). Tracking the number of people who visit the links that I share give me comfort that I'm not talking to a void.

By revsorg on 5 Jul 2011

You can't unring the bell

I work with File Secure Pro, a DRM service for files and documents, and would like to comment on this article.

If you are a victim of intellectual property theft, pursuing the thief in court (assuming you even know WHO it is) will be pointless for all but organizations with deep pockets. Even if you 'win' in court, you lose because your content has already been made freely available.

If your content is valuable enough to sue over then its valuable enough to protect. The best strategy is prevention by locking your content to authorized users only.

By fspadmin on 11 Jul 2011

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