The judge got it wrong. In fact he admits he's going against case law. To quote from the judgment:
HHJ Ticehurst (@ para 71) in Rock & Overton held "make available should bear its ordinary and natural meaning". He distinguished between providing money "directly to" another as opposed to a financial adviser who may "point" another to a bank meaning the bank alone "makes available the money".
I have endeavoured to weigh these subtle distinctions. The diagrams of how as a matter of electronic mechanics (if I may term it) the TVShack websites actually operated favour HHJ Ticehurstâ(TM)s restrictive construction. To my mind there is much in the distinction factually...
In copyright law terms, O'Dwyer wasn't making the films "available". The person that made them available was the person who uploaded them to a download site.
What O'Dwyer was doing was pointing to those sites, and (allegedly) thus encouraging people to download from them. In civil law, that is known as indirect or contributory infringement, as opposed to direct infringement which is the actual making available of copies.
It is "making available" that can be a criminal offence under s.107(2A), not the encouragement or inducement of people to go ahead and download from such sites.
Thus, for example, a briefing for UK Trading Standards officers, compiled by the Federation Against Copyright Theft, and hosted on the UK Intellectual Property Office's website, advises them that:
The offence in s107(2A) is now available as a tool to
trading standards officers to prosecute uploading file
sharers of digital product, such as film and music,
whether or not they do so in the course of a business.
Interestingly, this may also be the position in the United States, where the law on contributory infringement is said to be civil law that has been developed by judges, but not reflected in any provisions of the criminal law. However this point appears not to have been argued by O'Dwyer's lawyers.
What should have happened here is that the extradition proceedings should have been thrown out, on the basis that O'Dwyer's actions are not in fact covered by s.107(2A). But he should then have faced a full-on civil action in the UK courts from a consortium of content owners for the alleged indirect infringement.
It is also about time that UK judges in extradition cases were directed to consider where a case should best be heard under conflict-of-laws provisions: the so-called "forum clause". In this case, with the alleged infringer being UK-based, and the alleged infringement being worldwide in scope, if this is supposed to be a crime under UK law it should have been tried under UK law.