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.

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.

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 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 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.

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.

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.

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 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.

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…

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Comments on “Kickass Torrents Asks Justice Department To Drop Case”

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38 Comments
Anonymous Coward says:

They can lose to win

The DOJ doesn’t have to win to win, they just have to make it painful enough for defendant to win that it scares the crap out of others and bankrupts the defendant, which would effectively kill the site.

That’s really how things work, if you can’t make the charges stick, bankrupt them into submission through long court cases.

Quiet Lurcker says:

Re: They can lose to win

True, until the court imposes a trial bond (I think that’s what it’s called – government has to put up at least a large percentage of the projected legal/court costs of the trial so the money is there if they lose and fees are imposed) on grounds that the case is tenuous at best.

Or, until the multi-million dollar countersuit hits the governments collective desk.

Manabi (profile) says:

Re: They can lose to win

It’s still a dangerous game the DOJ is playing. If they go after someone who can put up a fight to the end, they risk setting precedent against their pet theories. Then they can’t go after sites in the future like that.

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.)

Uriel-238 (profile) says:

Re: Re: Re: Evacuating before the outcome.

If this happens too many times (like the FBI after the San Bernardino iPhone affair) it’s going to weigh on the credibility of the DoJ. They’re really a bunch of mercenary robber-bullies, but this trick will make that more evident to the public.

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.

That One Guy (profile) says:

Re: Re: Re:2 Evacuating before the outcome.

If this happens too many times (like the FBI after the San Bernardino iPhone affair) it’s going to weigh on the credibility of the DoJ. They’re really a bunch of mercenary robber-bullies, but this trick will make that more evident to the public.

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.

Uriel-238 (profile) says:

Re: Re: Re:3 Evacuating before the outcome.

Then it raises the question why they continue to get funding, or have we already admitted that the interest of the people are not represented by the state at all?

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.

Anonmylous says:

But it should...

“There’s basically zero chance that this leads to the DOJ dropping the case”

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.

Uriel-238 (profile) says:

Re: This is establishing a trend.

The DoJ and its law-enforcement branches can be repurposed by corporate interests even when in conflict with those of the people.

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?

Anonymous Coward says:

There is no way that the DOJ will drop the charges because if they do then it will add weight in Dotcom’s fsvour to have charges against Megaupload dropped and the DOJ are sure as fire in hell will not be dropping those charges against Megaupload no matter how deep in sh*t they have dug themselves in over the years with getting to prosecute this case so the charges against KAT alleged owner will not be dropped.

Ninja (profile) says:

MR Rothken is right. And he will be promptly ignored. Much like Dotcom this will drag on until Mr Vaulin cannot defend himself anymore due to financial woes delivering an easy win to the DOJ OR until they find a judge that ‘agrees’ (with an $) with them. Dotcom got lodged into their throat because he managed to get access to his money and has the funds to fight back. This may be the precedent they are waiting for to bring Dotcom down.

Disgusting.

Whatever says:

Kickass doesn’t really have a legal leg to stand on here. Their site was well known and enjoyed because it had categories and details for each of the TV shows and movies that you could search for, and always provided the best auto-complete feature. The site was not simply an index of files, it’s archival format is a significant issue.

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.

Uriel-238 (profile) says:

Re: A nation of laws.

I’m not so sure of that. I believe we aspired to be a nation of laws and formed the best system we could to achieve it, but I don’t think we ever really got there, in which the highest official or wealthiest mogul would be treated with the same respect and courtesy as the most destitute transient.

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.

toyotabedzrock (profile) says:

Important

1. The Captain America Civil War film was one of the titles where they abided by the DMCA, I remember that specific film being on there, and that it was replaced with a DMCA notice.

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.

Anonymous Coward says:

There is a lot of speeding on the interstate highways – I-95 in particular. There is a lot of crime in New York City. I believe the on-ramps to I-95 facilitate the breaking of the speeding laws. If we shut down the on-ramps to I-95 we could reduce and eliminate this criminal activity. If we shutdown the bridges and tunnels into New York City we could reduce the criminal activity there, probably would not eliminate it though. Maybe Labor Day weekend would be a good time to test this theory. September 2 to 6 for those non-US readers. We should go for the full shutdown for NYC, not just the lanes to the George Washington Bridge, like that NJ Governor Chrisite did.

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