July 19, 2012, 2:54 PM — Last week's Backspin column on the United States government's attempts to extradite Richard O'Dwyer, a British citizen, to the U.S. to be prosecuted for "criminal copyright violation" for providing a website, TVShack.net (since shuttered by the U.S. Immigration and Customs Enforcement or ICE), that was an index of sites that hosted pirated television shows and movies got some great feedback.
A few readers argued that because O'Dwyer intentionally linked to pirated resources and made money from doing so he was guilty of something. Reader "johne37179" posted online:
"What is missed here is that the fence who disclaims all knowledge that he is selling stolen goods is still guilty as an accomplice after the fact. You can't reasonably expect to protect yourself if you don't take some reasonable steps to prevent being used as a conduit for stolen materials. Your protections may be inadequate, but at least you are not a willing partner in an illegal transfer. No one reasonably thinks that claiming naiveté ´o the likelihood of illegal traffic on your site should protect the facilitator."
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While I see what johne37179's getting at, equating O'Dwyer with a fence is a weak argument at best. A fence is an "individual who knowingly buys stolen property for later resale, sometimes in a legitimate market. The fence thus acts as a middleman between thieves and the eventual buyers of stolen goods."
O'Dwyer was most definitely not a middleman in the sense of mediating transactions; he merely pointed in the direction of the stolen content without asking for payment for the pointing and didn't make money from the content; he only made money from selling advertising that was completely independent of the pirated material.
Several readers brought up the fact that because O'Dwyer knew that what he was doing was facilitating piracy, he was being unethical. I agree, he was indeed behaving unethically but no one goes to jail for not having ethics, they go to jail for the results of their lack of ethics.
So, were the results of O'Dwyer's lack of ethics enabling piracy? That's a tricky question. Obviously there's an argument that O'Dwyer was making it easy for people to find pirated content, but think about it: He wasn't actually encouraging piracy, he wasn't paying anyone to commit piracy, and he wasn't acting as a middleman for pirated content. He was just one of many entities providing a list of links ... along with the likes of Google, Bing and Yahoo.