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Richard O'Dwyer Memo Leaked To TorrentFreak Reveals MPAA's Insecurity In Piracy Fight

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Leaked internal memos from the Motion Picture Association of America, published early this week on the blog TorrentFreak, showed just how far the entertainment industry's lobbyists are willing to go to win the public debate on movie piracy.

Both memos concern the criminal prosecution of 24-year-old U.K. citizen Richard O'Dwyer, the founder of video search engine TVShack, who could soon be extradited to the US to be tried for copyright infringement. If he loses, he could go to jail for up to five years.

The case has attracted a great deal of media attention since late June, when Wikipedia founder Jimmy Wales denounced the U.K. Home Office's decision to extradite O'Dwyer. Many commentators have agreed with Wales and argued that, no matter what you think of piracy in general, O'Dwyer's crimes were not severe enough to warrant extradition.

But the memos, which are both dated July 19, show that the MPAA is committed to defending the extradition in the court of public opinion.

One lays out arguments for its members to use in discussions with reporters. It even includes a lists of questions that journalists would be likely to ask in an interview, with suggested answers. The other notes that the "overall media coverage has been and will continue to be challenging," and suggests that the MPAA "seek allies and third parties" who can argue its position to the public.

MPAA representative Kate Bedingfield confirmed the memos' authenticity in an email to The Huffington Post.

"These documents were intended for internal purposes, and they accurately reflect the facts of the case," she wrote. "Richard O’Dwyer has allegedly amassed hundreds of thousands of dollars from stolen works. The UK courts in approving his extradition specifically found that his alleged actions do constitute a crime under UK law."

The point about the illegality of O'Dwyer's actions is also a central theme in the memos. The Q&A section of the memo containing talking points, for example, includes the following passage:

Judge Purdy of the Westminster Magistrates’ Court held in his January 13, 2012 order that O’Dwyer should be extradited and also noted that the conduct in which O’Dwyer is alleged to have engaged also constitutes a violation of British law -- a finding that is necessary before someone can be extradited.

The MPAA is emphasizing this point because its opponents have argued that O'Dwyer's actions -- linking to sites that streamed pirated movies and TV shows without actually hosting any copyrighted material on TVShack's servers -- are not illegal under UK copyright law. And an "extraditable offense" under the U.K.-U.S. extradition treaty is any crime that is punishable by at least a year in prison in both countries.

Bruce Zagaris, a lawyer who founded the International Enforcement Law Reporter, said that until recently, most extradition treaties listed specific offenses, like murder and rape, for which an individual could be extradited. It's only in the last few years that the treaties have been amended with the kind of latitude that could permit O'Dwyer's extradition.

"Our treaties with EU countries all have very liberal provisions now in terms of the crimes that are classified as extraditable," he said. "It's much easier for the U.S. to request extraditions now -- it used to be they could only extradite you for very specific crimes."

Zagaris said that means that it's unlikely that O'Dwyer will win his pending appeal to the U.K. Home Office, no matter how much negative press (or how many angry petition signatures) his extradition attracts.

That doesn't mean that the MPAA's vigilance is unnecessary. If public outrage over the O'Dwyer case continues to mount, the U.K. could consider revising its extradition treaty to make nonviolent crimes like copyright infringement ineligible for extradition. A watchdog group in the U.K. has already called for such a change, which would deal a major blow to the Department of Justice's ambitious campaign to prosecute copyright infringement around the world.

Why? Consider the fate of MegaUpload founder Kim Dotcom, the other high-profile person facing extradition for his piracy crimes. Dotcom lives in New Zealand, which has an extradition treaty with the U.S. that lists the crimes for which one can be extradited. Copyright infringement is not among them, so experts have said that Dotcom is unlikely to be extradited -- even though his site was far bigger, and more lucrative, than TVShack.

CORRECTION: This story originally misstated the nature of TVShack's links; they directed users to sites that stream videos, not to BitTorrent files.

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