Everything’s free in America (copyrighted material not included)

18 January 2012 by

The Government of the United States of America -v- O’Dwyer, Westminster Magistrates’ Court – Read judgment

It seems appropriate, on the day when Wikipedia shut down for 24 hours to protest against US anti-piracy legislation, to talk about piracy (in the copyright sense) and what role human rights law has to play in the perpetual battle against it.

It is a topic that polarises, with some considering piracy to be no more moral than any other theft, and others seeing those who commit piracy offences as fighting for freedom of expression and liberal copyright laws. In the case of Richard O’Dwyer, a young man who is accused of setting up a website which breaches US copyright law and who is facing extradition to the US for trial, he attempted to block his extradition by relying on a combination of human rights and other objections relating to the manner and circumstances surrounding the request.

The background

Richard O’Dwyer, a 23 year old subject to an extradition request by US authorities has lost his attempt to resist the extradition. He is alleged to have breach US copyright law by setting up and running a website, TVShack, which gave the public free access to copyrighted films and Tv programmes. Take a look at the Extradition Act 2003.


He attempted to resist the extradition on three bases:

i. The offence did not meet the requirement of dual criminality (i.e. being an offence both in the jurisdiction where he is now and the one where he is to be extradited). District Judge Purdy considered that the test was satisfied.

ii. The extradition would be unjust or oppressive due to the passage of time from the alleged offence, in which case section 82 of the EA 2003 requires the request to be discharged. Mr O’Dwyer was arrested and interviewed on 29 September 2010, in the UK, and not charged. Evidence gathered by those events however is relied on by the US authorities.  He was released from bail on 23 May 2011 and arrested for extradition. This, it was argued, was unfair for a number of reasons, including that he would have lost any benefit he might have enjoyed from cooperating with the US prosecutors. The US conduct was oppressive, it was argued, because there had been a “tactical delay“, with serious consequence for his university education.

Referring to the case of Gomes and Goodyer v Government of Trinidad and Tobago, where the House of Lords stressed that the sort of factors making extradition unjust or oppressive must be outside of the ordinary unpleasant and alarming matters encountered by someone facing extradition and trial in another jurisdiction, District Judge Purdy rejected this argument. There was no basis for suggesting that a fair trial could not take place. For instance, no evidence was unavailable.

iii.  Extradition would violate Articles 5 (right to liberty) , 6 (right to fair trial) and 8 (right to respect for private and family life) of the ECHR. Given Mr O’Dwyer’s youth, his being at university and living near family and friends in the UK, he argued that extradition “would expose him to trial in an inappropriate forum and be disproportionate“. District Judge Purdy found this unpersuasive. Although for instance video link may allow the evidence to be given by Mr O’Dwyer in the UK, there was nothing in the requested extradition or circumstances while Mr O’Dwyer remained on bail in the UK which breached these human rights.

District Judge Purdy noted,

Very powerful observations do come from Lord Phillips, PSC in Norris v USA [2010] UKSC 9 (@ para 67) … His Lordship said “extradition proceedings should not become the occasion for a debate about the most convenient forum for criminal proceedings…Unless the judge reaches the conclusion that the scales are finely balanced he should not enter into any enquiry as to the possibility of prosecution in this country. ” (paragraph 9)

Consequently, none of Mr O’Dwyer’s arguments were accepted. He is likely however to appeal, so watch this space for more developments.

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Read more:

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: