Kickass Torrents Asks Justice Department To Drop Case
from the i'm-sure-the-doj-will-laugh dept
Last month, we looked at the criminal complaint against the alleged operator of the torrent search engine Kickass Torrents (KAT) and raised a number of questions about the complaint. We noted that it appeared that the alleged operator, Arten Vaulin, was getting the "Megaupload treatment," as there were a number of similarities between the two cases and the legal leaps of logic employed by the Justice Department in making their case. Thus, it was little surprise that Ira Rothken, who has managed the legal efforts for Kim Dotcom/Megaupload, has now signed on to represent Vaulin as well. His first move, last week, was to send the DOJ a letter, asking it to drop the case. While I would imagine that the request resulted in some hearty laughter among DOJ lawyers, it does lay out some of the key arguments that Vaulin will likely make as the case moves forward.The key issue -- as we pointed out in our post -- and which is also true of the Dotcom/Megaupload case -- is that the DOJ appears to be making up a secondary liability for criminal infringement claim, which does not exist in the law.
This alleged criminal copyright case arises out of an erroneous theory of criminal copyright law advanced by the United States that attempts to hold Artem Vaulin ("Defendant") criminally liable for the alleged infringing acts of KAT's search engine users. Discussion of Mr. Vaulin’s involvement in KAT shall await another day. Distilled down, in terms of technology, nothing more is alleged in the CC than that a visitor to defendants' alleged "KickAssTorrents" ("KAT") site can take advantage of automated search processes embodied there to search for and locate "dot torrent" files. Such files contain textual information assembled by automated processes and do NOT contain copyrighted content. After leaving the defendants' alleged websites, the visitor may stop and do nothing or use the data in such torrent files in conjunction with third party "client" software; and that pursuit may, according to the desires of the user and the uncertain nature of the availability of third party files on the internet, lead to both infringing and non-infringing files being constructed that are located elsewhere on the Internet. By the time any possible primary infringement by a former KAT visitor could ever occur the visit to the site is long over.Later, the letter points out how the failure of the complaint to point to any actual direct infringement shows just how weak the case is:
The indictment does not even come close to alleging direct "willful" copyright infringement as KAT contains and transmits no content files. Defendants cannot be held criminally responsible for what users do after they leave the KAT search engine behind. The Copyright Act does not criminalize secondary copyright infringement.... The Criminal statute at issue namely Section 506 only imposes liability for direct, willful infringement that causes specific damages.... The government’s copyright conspiracy theory for similar reasons fails as a matter of law. Such a conspiracy theory is little more than a novel back door attempt to improperly argue judge made civil secondary infringement in a criminal case. Trying to hold KAT criminally responsible for the entire global BitTorrent network does not pass muster.
The absence of allegations of specific unauthorized downloads or direct infringements in the complaint is not inadvertent: rather it is a side effect of how far removed defendant is from the potential infringing event and it is part of an improper criminal complaint that purports to impose presumptive criminal liability on a BitTorrent search engine for alleged offsite infringements. It is also a sign that the government is eager to improperly introduce concepts of judge made civil law into a criminal statutory analysis.The letter also notes that the Homeland Security Investigations agent who wrote the affidavit attached to the criminal complaint clearly did not understand how bittorrent works and completely misrepresented the technology in a way that unfairly represents how KAT and bittorrent actually work. For example:
Paragraph 19 of the Affidavit inaccurately states: “Between on or about June 24, 2016, and on or about June 30, 2016, HSI Special Agents downloaded from the Northern District of Illinois the following prerelease movies from KAT (at Subject Domain 4).” There was no movie or other content on KAT that could ever be downloaded and therefore no direct infringements could have occurred on KAT.... Infringements that occur after users, including HSI Special Agents, leave the KAT site behind cannot be criminally actionable against KAT.The case by the DOJ also relies very heavily on the fact that the HSI investigator was able to find a torrent for a pre-release copy of Captain America: Civil War via a KAT search. The case needs this, because it's the only way it gets even remotely close to criminal copyright infringement (remember, there's a big difference between criminal and civil copyright infringement, and individuals downloading/uploading stuff won't cut it (especially if there's no money in it). The complaint tries to get around this by focusing (almost exclusively) on the Captain America pre-release, because there is criminal infringement for pre-release works. But, again, Rothken points out the problems with this argument:
The only copyrighted work identified in Counts Three and Four is “Captain America: Civil War,” referenced in paragraph 19, discussed supra. There is no evidence to support the allegations as “Captain America: Civil War” or as to any specific work. The lack of evidence is not surprising given that the KAT technology did not store or transmit any content. If a user committed copyright infringement, it is only after they left the KAT servers behind.It also challenges the weird DOJ argument that KAT failed to comply with the DMCA notices it sent. As the letter points out, that's not a criminal offense.
It is settled that liability for direct copyright infringement cannot be based on provision of information services to individuals that such individuals use to commit infringement. More specifically it is also well settled law that mere hyperlinks and their more attenuated cousin, torrent files, cannot constitute direct copyright infringement. In brief, because KAT did not copy anything or transmit content, it cannot be charged with direct copyright infringement.
Alleged failures to comply with the conditions of a DMCA civil defense does not create a criminal cause of action. There is no Act of Congress establishing a crime for violations of the DMCA safe harbors. The DMCA is a defense in the civil context of contributory and vicarious liability for copyright infringement committed by third parties and of liability for intentionally inducing third parties to commit copyright infringement.There are a few other points made in there, including laughing off the "conspiracy" claims, since the DOJ only named one person and can't legitimately argue a "conspiracy" between KAT's operator and its users. There are also jurisdictional questions about trying the case in Illinois (or under US law at all) and of course, the silliness of including a money laundering claim.
The Government knowing that Judge made civil law for internet secondary copyright infringement could not be applied in the criminal statutory context is attempting to use the vague and novel theory of criminal “conspiracy” to try to argue it through a back door and such arguments fail as a matter of law. There is a scarcity of judicial opinions in contested criminal copyright cases that discuss how a criminal conspiracy theory could apply to mere internet hyperlinks or torrent files/trackers. The government by throwing against the wall the criminal conspiracy theory without any statutory support from Congress is trying to argue Judge made civil common law by analogy. Common-law civil liability principles cannot be extended to impose criminal liability. Crimes must be specifically defined by Congress. Federal crimes “are solely creatures of statute.”
There's basically zero chance that this leads to the DOJ dropping the case, but I imagine that much of this letter (perhaps verbatim) will show up in court before long...
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: artem vaulin, copyright, criminal copyright, doj, ira rothken, kim dotcom
Companies: kickass torrents
Reader Comments
Subscribe: RSS
View by: Time | Thread
They can lose to win
That's really how things work, if you can't make the charges stick, bankrupt them into submission through long court cases.
[ link to this | view in thread ]
[ link to this | view in thread ]
But it should...
I thought US case law already established that links are not secondary or contributory infringement of copyright, and if you remove said links when notified you get section 230 protections even if they were.
That's also beside the fact that these peoples are neither US citizens, nor are they operating in the US, nor were they arrested while visiting the US.
We have trade agreements and other world economics laws and such for a reason: Copyright is signed on to in various forms by nearly every country on the planet, having these people's own government go after them would be far more appropriate than trying to extradite and prosecute under US laws that do not apply to them and don't actually exist either.
Sick of you wasting our money there Fed. Knock this shit off or start charging rights owner's a fee for this crap.
[ link to this | view in thread ]
Re: They can lose to win
Or, until the multi-million dollar countersuit hits the governments collective desk.
[ link to this | view in thread ]
Lack of accountability tends to do that
[ link to this | view in thread ]
Ira Rothken is just laying pipe for now…
come later will force a huge settlement and a huge costs award.
I'm sure the DOJ sees it coming and are already starting to look
for ways to bypass their political masters to save some skin.
[ link to this | view in thread ]
[ link to this | view in thread ]
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Disgusting.
[ link to this | view in thread ]
Re: They can lose to win
Basically the DOJ (and the MPAA/RIAA) might win the battle (taking down KAT) but lose the war. (No longer able to take down any torrent site because of legal precedent.)
[ link to this | view in thread ]
Re: Re: They can lose to win
Yeah, those don't exist in the US.
[ link to this | view in thread ]
Re: Re: They can lose to win
That won't do much. The government doesn't pay that, taxpayers do.
[ link to this | view in thread ]
Re: Re: They can lose to win
[ link to this | view in thread ]
Basically, they cannot claim to be "innocent index" when they created and hosted specialized and detail pages for the shows. Since the content they were providing (by curation) was clearly copyright infringing, they can't claim not to know.
The site also had a number of features in common with Dotcom's mega, namely things like top lists and most popular files. Kim has already admitted (by his actions on his second file host) that the toplist certainly is a good indicator of knowledge of the activities on the site.
The "we don't host anything" game is just that, a game. It's a whole pile of tapdancing around responsibility for your site. Having clear knowledge that the most popular files (and almost all the files) on your curated pages were to infringing material makes it pretty hard to avoid knowledge. Selling ads (and charging more for those popular pages) is another issue.
Overall, Kickass is actually in a worse position in many ways than Dotcom.
[ link to this | view in thread ]
"Dotcom got lodged into their throat..."
[ link to this | view in thread ]
[ link to this | view in thread ]
Evacuating before the outcome.
There should be some kind of recourse when the government evacuates a case to avoid a precedent. Especially since the process, not the ruling, is being used to punish.
[ link to this | view in thread ]
This is establishing a trend.
The DoJ is not really a state agency anymore. The state just funds it as if it were.
Too bad the interests of the taxpayers isn't being represented here.
Wait...does that remind me of something?
[ link to this | view in thread ]
Re: Evacuating before the outcome.
What credibility? All they care about is whether or not they can get away with whatever they want, so long as the courts keep letting them do so they couldn't care less what the public thinks of them.
[ link to this | view in thread ]
A nation of laws.
To be fair, Napoleonic Law came into force (in France) sixteen years after the US Constitution.
I think that we pretend to be a nation of laws, that we teach our children that we are and fail to recognize or admit when there's evidence that laws are not being equally applied, is a factor that keeps us from becoming a nation of laws.
[ link to this | view in thread ]
Re: Re: Evacuating before the outcome.
In that case, we need to adjust our attitude (and the education of our kids regarding government) to acknowledge that that by the people for the people bullshit is, well, bullshit.
We are no longer being governed by consent, but by force.
[ link to this | view in thread ]
[ link to this | view in thread ]
Re:
You'd have a point if it were a civil case.
But that doesn't apply to a criminal case.
You should learn what the law says.
The "we don't host anything" game is just that, a game. It's a whole pile of tapdancing around responsibility for your site. Having clear knowledge that the most popular files (and almost all the files) on your curated pages were to infringing material makes it pretty hard to avoid knowledge. Selling ads (and charging more for those popular pages) is another issue.
Again, you should learn what the law says before spouting off and showing your ignorance.
[ link to this | view in thread ]
Re: Re:
Where to start?
"You'd have a point if it were a civil case.
But that doesn't apply to a criminal case."
Well, see, in the conspiracy to profit from copyright infringement, this is an important part of the case. A criminal conspiracy requires only that two or more parties agree to participate in an illegal act, usually for the gain of at least one party. In this case, KA is the one gaining (by knowingly selling ad space on pages featuring copyright material), and the other parties provide the material with the goal of distribution. They conspire together to reach their goals, by furthing the common goal (piracy).
Oh, and basic US law says that you do not need to list co-conspirators. They may have unindicted co-conspirators (who may have committed the actual bad act), or you may have persons unknown even to the person charged. There is no legal requirement of knowing the other people involved or meeting in some dark, smoky room to work out the conspiracy. Operating with a common goal (and profiting by whatever means in achieving that goal) seems to meet the legal standard.
"Again, you should learn what the law says before spouting off and showing your ignorance."
Actually, I think you may want to reconsider that. Even Kim Dotcom figured out that parts of his indictment are related to things that they did which showed knowledge of the infringement - even without actually doing the infringement themselves. Pure search engines (such as Google) generally have a way out because they don't embellish searches or fill their pages with "fast download links" for the material. Knowledge is important here!
Finally, you also seem to mock the money laundering charge. Yet, just like with Kim, it's an important part of the process. See, if Kickass was legal and above board, the owner would not have worked so hard to obscure the final destination of payments or accept payments in "untraceable" crypto currency. The actions of the owner is to move the ill gotten gains as far away from the business as possible, so as to minimize financial risk if shut down. Moving the money through crypto services is a form of laundering, turning dirty money in the top to clean money in the owner's pocket. If the money was all legal and above board, he would generally want to keep it in the business and pay lower corporate taxes, rather than taking it as significantly more expensive personal income - of course, assuming that he declared the income at all (another case, possibly in another jurisdiction).
Finally, let me say this: You have spent a fair bit of time over the years proving your legal savvy by supporting things like "copyright violates the first amendment". Let's be honest here, you aren't always right. Perhaps rather than just slamming an opposing view with a "you should learn the law" throw away diss, perhaps you should consider that you have your own failings in the area as well. Yes, you are well read - but the words versus the real world are two very different things!
Oh, and can you turn the censorship off already? You really look petty and mean by censoring my comments.
[ link to this | view in thread ]
Re: Evacuating before the outcome.
They're incredibly short-sighted. After the Megaupload farce, they're still kicking that hornet's nest.
[ link to this | view in thread ]
Important
2. They had movie trailers as torrent downloads. They appeared to be advertisements. No other torrent site carried trailers like this.
3. Kat had a huge forum with clever rewards for certain activities to encourage interaction, this might have made up more of the actual traffic of the site.
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re:
[ link to this | view in thread ]
Re: Re:
Too hard. Either because his tiny brain can't handle it or because he is being paid to be ignorant. I'm not sure which is worse.
[ link to this | view in thread ]
Re: Re:
I'm guessing that the person thought that if the DOJ can spout their ignorance of the law and have nothing to answer for when called out on it, then they can do the same with posting on here.
[ link to this | view in thread ]
[ link to this | view in thread ]
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
Re:
If so, then using that wifi to look up torrents then downloading them after you leave the building would make the DoJ itself guilty of criminal copyright violations under the same logic they are applying to KAT!
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Incriminating the DoJ
Expect them to fight back with force.
[ link to this | view in thread ]