Kickass Torrents Creator Can't Get Criminal Case Tossed Out

from the moving-onward dept

A year ago, we noted that Kickass Torrents had received the Megaupload treatment, getting hit with criminal charges and having its owner, Artem Vaulin, arrested in a foreign country (in this case, Poland). As we noted in looking over the original complaint, there were some significant concerns (similar to the ones we had with the Megaupload case) concerning whether or not running a service that other people used to infringe could possibly make you guilty of criminal copyright infringement.

The key issue: there is no "secondary liability" concept in criminal copyright law. There is such a thing in civil copyright law, whereby if you're found to be "inducing" copyright infringement (via clear and deliberate statements and steps) you can be found to have to have infringed -- but that's not the case for criminal law. The case against Vaulin (as with Kim Dotcom) tried to get around this by arguing a few different things, which we'll discuss below. Vaulin is fighting extradition in Poland, but in the meantime, had asked the federal court in Illinois to drop the case already, due to the failure to show actual criminal infringement by Vaulin.

Such an effort was always going to be at least something of a long shot, as courts will tend to give a lot of deference to the DOJ, and now Judge John Lee has rejected the request (as was first reported by the Hollywood Reporter).

The first issue the judge had to review was whether Vaulin could even bring his motion in the first place. The DOJ, playing hardball, argued that because Vaulin was fighting extradition to a country that he was not from and had no connection to, he shouldn't be allowed to make any motions in court under the "fugitive disentitlement doctrine" (again, there are similarities here to the DOJ declaring Kim Dotcom a fugitive for fighting extradition -- but that was in a separate effort to get to keep all of Dotcom's assets). As the name suggests, "fugitive disentitlement doctrine" says that those who are running from the law can't show up in court to make their arguments. And... that makes some amount of sense for actual "fugitives" who are hiding and no one knows how to find them. But that's an entirely different situation when you're fighting against extradition to a country you have no connection to.

Unfortunately, the court agrees with the DOJ that the fugitive disentitlement doctrine can apply here, and thus Vaulin's motion is rejected on that basis alone. It cites a few cases on this -- though most do appear to involve people who are more like actual fugitives in that they left the US to escape US law enforcement. However, the court does find one case, In re: Kashamu that involved a Nigerian national who was resisting extradition in a drug smuggling case. That case is precedent, and while I think it's decided incorrectly, the district court can't just ignore that precedent. And thus:

Based on these authorities, and in light of the principles undergirding the doctrine, the Court is persuaded that the elements of the fugitive disentitlement doctrine are met in this case. All three principles that the Supreme Court discussed in Degen—enforcement and mutuality, redressing the indignity of absence, and encouraging voluntary surrender—are implicated here. As long as Vaulin is in Poland, he is not within the Court’s reach. And, as far as the Court is aware, he is actively resisting extradition efforts. His attorneys represented at the most recent status hearing that there is a “real possibility” that he will agree to appear here, but also indicated that he is actively appealing the Polish courts’ decision to extradite him, a process which could take years. Thus, insofar as Vaulin is interested in participating here, he appears willing to do so only from a safe distance.

That said, the court recognizes that the Supreme Court has urged courts to apply fugitive disentitlement "with caution" so it actually digs into the merits of the motion to dismiss. And that's where things get troublesome. There are a few different arguments the court has to respond to, so we'll take them in turn. The first is whether or not criminal conduct occurred in the United States at all. Vaulin and Kickass Torrents are not in the US and thus they argue that if there was any criminal activity it can't be tied to the US. The DOJ argues in response that Vaulin is still guilty of "aiding and abetting" criminal copyright infringement in the US. And the court agrees:

But the core theory underlying the indictment is that Vaulin aided, abetted, and conspired with users of his network to commit criminal copyright infringement in the United States. The first paragraph of the indictment, which is incorporated throughout, alleges that “[m]illions” of Vaulin’s users resided in the United States.... The indictment goes on to allege that these users “uploaded” and “download[ed]” content,... and “obtain[ed] [ ] desired infringed copyrighted content,”.... When viewed in a light most favorable to the Government, as the Court must do at this preliminary stage, the indictment alleges acts of domestic infringement.

But... that totally misses the argument that Vaulin is actually making. No one denies that there were people in the US who used the platform for infringement. But just because people are using the platform for infringement, doesn't make it criminal infringement. For something to be criminal copyright infringement it has to reach a much higher bar than just "people downloaded stuff." That may suffice (with certain caveats) for civil infringement, but criminal requires a lot more which the court ignores in that paragraph. The court also says that because Kickass Torrents had some servers in Chicago, "overt acts in furtherance of the conspiracy occurred in the United States." I'm troubled by the fact that the court completely brushes past the differences in civil and criminal copyright infringement here, because it's a big difference.

The second argument proffered by Vaulin, is that torrent tracker files are not the copyright-covered work, and thus downloading or distributing torrent files cannot lead to criminal liability. The court claims that this argument "misunderstands the indictment." But... that's wrong. I'd argue the judge's reply "misunderstands the argument." Here's what the judge says:

The indictment is not concerned with the mere downloading or distribution of torrent files. Granted, the indictment describes these files and charges Vaulin with operating a website dedicated to hosting and distributing them... But the protected content alleged to have been infringed in the indictment is a number of movies and other copyright-protected media that users of Vaulin’s network purportedly downloaded and distributed without authorization from the copyright holders.... The indictment describes the torrent files merely as a means of obtaining the copyrighted movies and other media.

But... uh... that totally misses the point of the argument. The torrent files are not copyright-covered content. Nowhere does Vaulin or his site distribute or reproduce copyright-covered content. Many, I'm sure, will argue that this is semantics and nitpicking, but it's actually quite important. Yes, a torrent file can then be used to infringe, but it's the end user potentially doing the infringement -- in the same way that a VCR can be used to infringe, but it's not Sony who is held liable for that infringement (even in the civil sense, let alone the criminal). This is the very basis of intermediary liability. But the court skips over all that and says "yeah, but there's infringement." Well, no shit there's infringement. But the question is who's actually doing the infringement. Because if it's not Vaulin, then, this case has a problem. And the court misses that entire argument and just says "there's lots of infringement." That's... bad.

This part though, does make one claim that, if true, would be a lot of trouble for Vaulin: that there's evidence that Vaulin may have also run some direct download websites. If the evidence shows that Vaulin/Kickass Torrents itself was hosting infringing content, then that could be a much bigger deal and make the case a lot more legit. But even here, the court kind of breezily brushes by this fairly important point, and lumps Vaulin in with "his co-defendants' distribution of copyrighted content through direct download websites." So, it's at least unclear to me if the claim is that Vaulin himself ran direct download websites (which would be very bad for Vaulin) or that some unnamed "others" did so, in which case, the specifics matter a great deal.

Next up is the key argument, which we noted up top, about there being no "secondary liability" in criminal copyright infringement. The DOJ responds -- and the court accepts -- that they're not actually charging him with secondary liability for criminal copyright infringement, but rather "conspiracy" and "aiding and abetting" for criminal copyright infringement. Here, unfortunately, I disagree with the argument that Vaulin's lawyers made that the statute on "aiding and abetting" simply doesn't apply at all to copyright law (even though there is some debate among scholars on this). As I've noted in the past, I do think it does apply, but that the standards for aiding and abetting are much different than the standard for basic secondary liability. Aiding and abetting requires "a tight nexus between the mental state of the defendant and the ultimate criminal act committed by another." Merely providing a platform that many people use -- and very rarely used for criminal copyright infringement (again, a much higher standard) -- makes it difficult to see how Vaulin could qualify as aiding and abetting.

But the court ignores all of that, focusing on the question of whether or not there even is aiding and abetting for criminal copyright law -- and saying that there is. And, because of that, there's no discussion of whether or not what Vaulin did qualifies as actual aiding and abetting. It's just... assumed. Now, it's possible that this is (1) because the argument wasn't raised by Vaulin or (2) this is not the stage to raise that issue, and perhaps that's true. But it does feel like the court wandered down a side path here, and ignored the larger question.

Vaulin makes one final argument on this issue -- that if conspiracy and aiding and abetting do apply to criminal copyright law, they should be "void for vagueness." This is kind of a "shoot the moon" argument, saying that it's so vague that people couldn't understand if they were "aiding and abetting" criminal copyright infringement. Here, the court mainly relies on the fact that criminal copyright law is clear. But... again, that ignores whether or not it's clear what "aiding and abetting" criminal copyright law is. Instead, the court pivots and says that Vaulin's "behavior" -- such as moving Kickass Torrents to new domains -- showed that he knew what he was doing was illegal. There's a little bit of a logical leap there -- as one could just as easily say that he was moving domains and kept the site running because he believed it was perfectly legal, and he felt the foreign court orders were wrong... but... that's probably a weak overall argument.

There's one last argument, which is that the government never shows anyone who actually criminally infringed on copyright. It claims that Vaulin aided and abetted such infringement... but not the actual infringement. The court basically says "this doesn't matter" or, at the very least, it doesn't matter at this stage of the process. At trial, it notes, the DOJ will have to show infringement.

All in all, this isn't a hugely surprising ruling -- but it is disappointing. It appears to get distracted and sidetracked and confused on a few different issues, without clearly addressing the actual underlying arguments. As happens all to often in copyright cases, the issues get blurry when judges start focusing on "but... all this infringement is happening." That may be true, but the question is who is actually liable for it, and whether or not it's actually criminal. And that requires a much higher bar, and the court fails to actually show that those bars are cleared. That doesn't bode well for Vaulin.


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  • icon
    Ninja (profile), 7 Aug 2017 @ 12:09pm

    So, when is the US starting extraditing Americans to Iran because they disrespected something from the Quran? Not happening? So why are they trying to extradite people for disrespecting their laws? Has he been tried and convicted in his own country for similar crimes?

    Of course there are details we need to sort out in this case but it smells like Kim Dotcom 2.0. Except that the poor guy probably doesn't stand a chance against US Govt overreach since he doesn't have as much money as Dotcom.

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    • icon
      Roger Strong (profile), 7 Aug 2017 @ 2:44pm

      Re:

      This isn't Iran; it's Comcast. It's like choosing a cable channel package. If you want due process at one stage of the process (extradition), you CAN'T have due process at another. (US federal court) "But hey, it's your choice."

      Hopefully the Polish court makes extradition dependant on due process at all stages of the process.

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  • identicon
    Anonymous Coward, 7 Aug 2017 @ 2:04pm

    isn't anything to do with Hollywood and the entertainment industries having bought so many judges, is it? what about if it did, it would totally fuck up the fabricated case brought against Dotcom? cant have anything like that happening now, can we?

    reply to this | link to this | view in chronology ]

  • icon
    Uriel-238 (profile), 7 Aug 2017 @ 2:10pm

    How much evidence do we need...

    before we understand that the US Department of Justice is just a shill for a corporate aristocracy, and does not represent the justice of the people of the United States?

    reply to this | link to this | view in chronology ]

    • identicon
      Thad, 7 Aug 2017 @ 2:35pm

      Re: How much evidence do we need...

      Holder certainly had his problems (including in "copyright enforcement" shakedowns like this one), but I appreciated his walking-back of civil forfeiture and the drug war.

      The DoJ, just like the government as a whole, has systemic issues that can be either mitigated or aggravated depending on who's in charge.

      The guy who's currently in charge is a poster child for all the worst abuses of the "law and order" mindset.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 8 Aug 2017 @ 2:58am

      Re: How much evidence do we need...

      ...less than we already have.

      reply to this | link to this | view in chronology ]

  • icon
    PlagueSD (profile), 7 Aug 2017 @ 2:26pm

    So, when are we going to start going after Toyota for enabling ISIS to commit acts of terrorism? They're riding in Toyota vehicles in almost EVERY picture posted.
    When are we going to start going after the gun manufacturers for all the mass shootings that are going on? Aren't they enabling this by providing the guns?
    Are we going to go after car manufacturers and breweries/wineries/distilleries for all the DUI fatalities? If there were not cars or alcohol, then we wouldn't have any deaths caused by drunk/impaired driving.

    Going after a hosting company for acts of it's subscribers makes about as much sense as the above statements.

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  • identicon
    Anonymous Coward, 7 Aug 2017 @ 2:38pm

    The Judge doesn't understand the case he is overseeing

    The facts are as clear as mud and the judge is pretending that he has a clue what he is ruling on. The exact same arguments could have every single person in that court case hauled into court in China, Turkey or any other country that has laws as backwards as our own.

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  • identicon
    Nate Hoffelder, 7 Aug 2017 @ 2:39pm

    I think we're going to end up seeing the judge invent a legal argument that makes sharing the tracker files being the equivalent of pirating the content itself.

    Something similar has already happened in Europe in relation to sharing a URL, and it's not actually a bad idea.

    Why shouldn't the definition of piracy expand to reflect new technologies?

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    • identicon
      YAOoG, 7 Aug 2017 @ 2:48pm

      Re:

      Sharing / Downloading / Uploading files IS NOT PIRACY.

      Get that through your head.

      Piracy is either open seas capture of ship, crew and payload, or is taking works, making physical copies of them and selling for profit.

      Uploading/Downloading is just the electronic version of someone recording Game of Thrones on VHS or DVD and passing it along to a friend.

      So, first the Judge needs to be hit upside the head with a nerf-clue-bat because it's patently obvious that the judge is clueless.

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      • identicon
        Nate Hoffelder, 7 Aug 2017 @ 2:55pm

        Re: Re:

        "Sharing / Downloading / Uploading files IS NOT PIRACY."

        there's like a hundred bajillion court cases that disagree with you.

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        • icon
          Roger Strong (profile), 7 Aug 2017 @ 3:26pm

          Re: Re: Re:

          No, there are not.

          Uploading *pirated content* is piracy. But doesn't make BitTorrent illegal any more than it makes the internet illegal. (Not that that claim hasn't also been made.)

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      • icon
        Stephen T. Stone (profile), 7 Aug 2017 @ 3:17pm

        Re: Re:

        the electronic version of someone recording Game of Thrones on VHS or DVD and passing it along to a friend

        That is, technically, illegal distribution of copyrighted material.

        reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 7 Aug 2017 @ 3:20pm

      Re:

      I think we're going to end up seeing the judge invent a legal argument that makes sharing the tracker files being the equivalent of pirating the content itself.

      Think about that. Please. BitTorrent has non-criminal, not-pirate uses.

      • Blizzard uses its own BitTorrent client to download World of Warcraft, Starcraft II, and Diablo III.

      • Facebook and Twitter both use BitTorrent internally to move files around.

      • The Internet Archive uses it.

      • The UK government released several large data sets via BitTorrent.

      • NASA used BitTorrent to make a 2.9GB picture of the Earth available.

      • Linux ISOs are commonly distributed via BitTorrent.

      • Many bands release free music and videos via BitTorrent to promote their work and encourage people to attend live shows and buy albums.

      You're insisting that torrent search engines be responsible for everything they link, much like some delusional courts insist that Google be responsible for everything THEY link to.

      Making an automated search engine all but impossible. Someone would have to download each torrent (already a legal minefield) and verify the copyright status of each and every song, movie, image and 3D model.

      Something similar has already happened in Europe in relation to sharing a URL, and it's not actually a bad idea

      In the same sense that "The Mooch" was not actually a bad Communications Director.

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      • icon
        MyNameHere (profile), 8 Aug 2017 @ 1:17am

        Re: Re:

        It's great to say bit torrent has it's non-criminal uses. In fact, bit torrent is neutral, a nothing.

        Bittorrent isn't on trial here, for that very reason.

        Kickasstorrents is on trial not because of the protocol they happened to use, but how the used it and to what end. KAT was about sharing pirated stuff, plain and simple. The site operator(s) went out of their way to create information pages for many of the movies and TV shows - and part of that "top of the page" was links to download in various formats including "cam". The site operator cannot deny that his business was predicated on piracy.

        "You're insisting that torrent search engines be responsible for everything they link"

        Actually, all the courts (and some of us) are saying is that if you build a site with the intention to aid and abet piracy, then you will be treated as such. Based on everything that was on the site, it would be impossible for the site operator(s) not to know that their site was helping people pirate.

        It's pretty simple, when you stop trying to hide it behind technology.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 8 Aug 2017 @ 2:03am

          Re: Re: Re:

          "Based on everything that was on the site, it would be impossible for the site operator(s) not to know that their site was helping people pirate."

          But, in your rush to be a contrarian, you miss the actual points.

          First, Roger's comment was not in response to the case or the article, it was in response to the person stating that the judge should find torrents themselves illegal. This is a very bad idea, for the reasons stated, as it is for many other practical reasons.

          Secondly, the major issues here are not whether the torrents themselves are legal. the issues are that valid defence actions are being ignored because the guy has never set foot in the US, and that the very real differences between criminal and civil infringement are being deliberately confused. I note that you have, as ever, ignored the actual arguments in the article to pick on something you think you can easily reject.

          "It's pretty simple, when you stop trying to hide it behind technology."

          Nobody is doing that, although the people prosecuting these cases are very happy to try and treat the crime differently because the action has "on the internet" as part of the action.

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          • icon
            MyNameHere (profile), 8 Aug 2017 @ 2:29am

            Re: Re: Re: Re:

            I think that if you actually read the whole story (I know you don't often) you would note that the judge went over and above what was required and explained why, even if the defendant himself made the request that the charges would not be thrown out.

            I was agreeing with Roger - torrents in and of themselves (as a protocol) should not be found illegal - but it's not the protocol that is on trial. So the point either way is moot.

            "ignored the actual arguments in the article to pick on something you think you can easily reject."

            I did no such thing. I agreed with Roger, but I pointed out that it's not relevant in the case, and that I consider torrents as a protocol legal, just their use is not.

            See, the problem here is people are making the incorrect assumption that torrents = piracy. They aren't always. But even you can remember the guy who took his pirate site, after losing in court, and turned it into a legal torrent site. He lasted a very short period of time because people were not coming to a site looking for legal content. That legal content (as listed) is generally distributed directly in the games or is used internally as a transfer protocol between data centers. Again, the protocol itself isn't illegal.

            "Nobody is doing that, although the people prosecuting these cases are very happy to try and treat the crime differently because the action has "on the internet" as part of the action."

            I don't think so. They are going to where the crimes are happening. With millions of Americans pirating every day, it's clear that the internet is the hot spot for piracy of all sorts - and most importantly, where people profit from it. Kim Dotcom made millions off of piracy, playing the "just a file host" card but then taking steps to launder all the income away from the site as fast as possible. Other sites that have faced justice have been making hundreds of thousands and even millions running their pirate sites. When there are millions in ill gotten gains, there will be law enforcement on the case.

            Too often, the excuse is "on the internet" to mean it's not important or somehow not real. Read Mike's post careful and you will see how hard he is working to try to build up layers of excuses as to why a guy building pages for unreleased movies and such and putting download links on them is somehow NOT responsible "because torrents". It's an insane technology dodge that requires everyone ignore the reality of the situation, that he was making a boat load of cash running pirate site. People didn't come to the site for his personality or witty conversation, the came to download the latest movie and TV shows, and the site happily made link buttons to the very best of them. It's pretty hard to deny reality, unless of course it's "on the internet".

            So yeah, summary (because you likely didn't read). I agreed with Roger, said it's not relevant anyway, and explained why. You shit yourself trying to come up with a way to slam me. You failed (again). Thanks for playing.

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            • icon
              Stephen T. Stone (profile), 8 Aug 2017 @ 2:47am

              Re: Re: Re: Re: Re:

              See, the problem here is people are making the incorrect assumption that torrents = piracy.

              People like federal judges.

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              • identicon
                Anonymous Coward, 8 Aug 2017 @ 8:09am

                Re: Re: Re: Re: Re: Re:

                Don't worry - when the next Liam O'Grady makes the claim that torrents = piracy you'll be seeing MyNameHere singing the judge's praises, demanding that the law catch up to piracy. (Because for some reason, the law is the law is the law doesn't work for him as a reason anymore...)

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            • icon
              PaulT (profile), 8 Aug 2017 @ 3:02am

              Re: Re: Re: Re: Re:

              "it's not the protocol that is on trial"

              Again, Roger's comment was not in regard to the trial, it was in response to Nate's claim that the judge should find torrent files illegal.

              "I did no such thing."

              You posted one comment, which was addressing Roger's comment as if it was to do with the trial directly and not a response to another user. You commented on nothing else. It seems to fit my view of it.

              "I don't think so. They are going to where the crimes are happening"

              Are they? I don't remember American authorities trying to extradite people to the US who had never set foot there for piracy with physical media. Perhaps you can provide a source to show I'm wrong? I *do* remember people being shut down in the countries they operated in, but never people who merely posted VHS tapes to the US, and certainly not for secondary infringement.

              "With millions of Americans pirating every day, it's clear that the internet is the hot spot for piracy of all sorts"

              Also a HUGE hotspot for legal content! In fact, figures generally show that piracy goes DOWN where legal content is more easily available. One of the main things stated here constantly is that by removing bullshit like windowing, platform restrictions, blackouts, etc., the industry can greatly reduce piracy. Certainly it's far, far more effective than trying to sue customers and extradite foreigners who have never set foot in your country for breaking your laws.

              Yet, pathological liars such as yourself will always pretend this is actually support of piracy.

              "a guy building pages for unreleased movies and such and putting download links on them is somehow NOT responsible "because torrents""

              That is a moronic lie, and I'm sure you knew it while writing it. The issue is not whether he's guilty of copyright infringement. The issue is that he's being prosecuted a) for breaking the laws of a country he's never been to and b) that he's being prosecuted for SECONDARY CRIMINAL infringement, even though secondary infringement is only a concept in the civil version of the statutes. At no point does he claim that he is not responsible for anything, only that he should not be directly liable for the actions of people on the site:

              "No one denies that there were people in the US who used the platform for infringement. But just because people are using the platform for infringement, doesn't make it criminal infringement."

              Can you see the difference between that and what you're claiming?

              If you can stop bullshitting about what's actually being said in the article, maybe you can address the reality of the points raised. You can start by addressing facts and actual quotes, not whatever interpretation you can hallucinate to attack people.

              "But even you can remember the guy who took his pirate site, after losing in court, and turned it into a legal torrent site."

              Ah yeah, one of your tactics. Give some vague reference to something you think you remember, and it's my fault if I either don't recall or remember it differently. If I find evidence to prove you wrong, you'll just claim it was some different case.

              Your tactics are as tiresome as they are dishonest.

              "People didn't come to the site for his personality or witty conversation"

              No shit, since that wasn't what was on the site (to my knowledge). People also don't go to YouTube for their conversational quality. People also don't go to Twitter for their latest long-form novel fix. So?

              "Read Mike's post careful and you will see how hard he is working to try to build up layers of excuses"

              Oh yeah, "Mike meant what *I* want him to be saying, *your* reading of what he says isn't true because I said so!

              You're pathetic. But, consistently contrarian, I suppose.

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              • icon
                MyNameHere (profile), 8 Aug 2017 @ 5:13am

                Re: Re: Re: Re: Re: Re:

                " I don't remember American authorities trying to extradite people to the US who had never set foot there for piracy with physical media."

                I don't remember people with physical media selling into the US in huge numbers.

                The rest, well... take a rest, you are straining yourself to be witty and proving you are only a half wit.

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                • icon
                  PaulT (profile), 8 Aug 2017 @ 5:39am

                  Re: Re: Re: Re: Re: Re: Re:

                  "I don't remember people with physical media selling into the US in huge numbers."

                  Well, I can't speak specifically to the US, but I do remember buying a fair number of pirated VHS copies of banned movies from overseas during the 80s and 90s. I also remember a lot of CD-Rs later on being peddled in markets, many of them imported from Asia (including, IIRC, seeing them in Chinatown areas in several US cities). it was a vibrant market (although, of course, you use an arbitrary qualifier in your description to avoid being held to your claim when facts are cited).

                  I do remember local suppliers being shut down, I do remember suppliers being prosecuted or otherwise blocked in their home countries where appropriate. I don't recall them being prosecuted according to another country's laws or anyone being held liable for "secondary" infringement. So, as I said, although you just find excuses to avoid the arguments at hand, as ever.

                  Your refusal to address anything said in the article, the actual arguments, any verifiable facts or the responses to you have yet again been noted.

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                  • icon
                    Ninja (profile), 8 Aug 2017 @ 8:37am

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    Let's not forget after all this discussion that a seemingly infringing torrent can be both infringing and not depending on who downloads it. I've downloaded all of the old DVDs I have at home to make them easily sortable and playable via a central library (that happens to mix pirated content with those copies :D). So I OWN the thing. It isn't like I"m going to buy it again.

                    Besides, here in my country I can download anything and I can maintain a database of hashes since it's only illegal to host the thing. I wonder how the us would play their cards here. I also wonder how the Polish system works. It's probably not as good as it is here.

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                    • icon
                      Toom1275 (profile), 10 Aug 2017 @ 7:18am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      I have ROM versions of a handful of old gameboy games. Every single one of them, I currently legally own the cartridge right here as well.

                      Essentially, downloading something you already own a physical copy of is functionally little different from "format shifting", like burning your old VHS to DVD to stop it from deteriorating further, or ripping CDs/DVDs to digital. The only difference is that it's some rando on the internet did the shifting instead of us, saving us the hassle of buying the specialized equipment and doing the process ourselves.

                      I actually had never cared for playing game ROMs at first... until the cartridge for one of my games deteriorated to the point where it could no longer save data anymore. Now I'm sold. The ROM's just more convenient to use; being able to play on my phone rather than 2 dedicated devices, being able to savestate while playing, rewind, not breaking off more pins of my GameShark, etc.

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                  • icon
                    MyNameHere (profile), 8 Aug 2017 @ 1:48pm

                    Re: Re: Re: Re: Re: Re: Re: Re:

                    "Your refusal to address anything said in the article, the actual arguments, any verifiable facts or the responses to you have yet again been noted."

                    The actual arguments are the same old same old, excuses as to why we shouldn't look at the overall site and realize that it's nothing but a pirate site operated for a profit by a guy who knew exactly what it was.

                    Mike spends a lot of time hand wringing over the concept that torrents aren't infringing. This is true. However, they are the first step in an act of infringement, you need the torrent file or magnet link to be able to download the rest. That is the "aiding and abetting" part of the deal.

                    See, Kickass wasn't a random search engine that displayed automated results. It was a site packed with individually created pages, with information about each of the movies, tv shows, and record albums, and had featured links coded by the site operators to the best of the links. It wasn't a blank search engine, it was a guide to pirating.

                    Without pirated materials (which made up almost all of the sites listing and pages), the site would have been barren, and would have not been very popular - and not at all profitable!

                    The court ruled clearly - it's each to see the what the site was doing and how it was operating, and any attempt to say it wasn't a pirate site would be dishonest.

                    "I do remember local suppliers being shut down, I do remember suppliers being prosecuted or otherwise blocked in their home countries where appropriate. I don't recall them being prosecuted according to another country's laws or anyone being held liable for "secondary" infringement."

                    You need to think a little harder. If a guy in the UK sells a pirated CD or VHS tape that was made in France, he gets prosecuted in the UK under UK laws, even if the item was made somewhere else. In extreme cases, it wouldn't be out of the question for the French to also have a go if the guy in the UK was paying someone in France to create it specifically for him (conspiracy).

                    Torrent sites are a perfect criminal conspiracy in that manner. Each of the parties involved does a little part of the job to further the criminal action. Those who create the torrent files and originally seed it, the sites that help make those torrent files available, and those who download the content and re-seed it or peer it are each parts of a conspiracy to achieve a single goal, pirated materials.

                    Just like physical materials, the legal system generally stays away from prosecuting those who purchase or receive the content only as that is whack a mole at it's finest. Instead, they go at the key actors in the conspiracy, which are those who create the torrents (rippers and eoncoders) and the pirate torrent sites which list them and aid and abet the distribution.

                    Torrents exist in their current form as an attempt to dodge responsibility or make it hard to prosecute by splitting up the process into individual slices that have a certain amount of plausible deniability. It's the same manner (almost to the letter) that drug street gangs use these days to sell drugs. You ask one guy, you pay a second guy, and you received the product from a third guy who got it from a fourth guy... it makes it a lot harder to prove an individual criminal transaction. If you stand back, it's not hard to see that drugs are being sold.

                    So yeah, points addressed. Now can you manage it without personal attacks?

                    reply to this | link to this | view in chronology ]

                    • icon
                      PaulT (profile), 9 Aug 2017 @ 12:57am

                      Re: Re: Re: Re: Re: Re: Re: Re: Re:

                      "Mike spends a lot of time hand wringing over the concept that torrents aren't infringing. This is true. However, they are the first step in an act of infringement, you need the torrent file or magnet link to be able to download the rest. That is the "aiding and abetting" part of the deal."

                      You also need an internet connection, a web server, a website with some HTML and a web browser. Are you claiming these things are all partly responsible?

                      "It was a site packed with individually created pages"

                      How were these created? Were they individually created by a human being? Or were they procedurally generated by scraping data from IMDB and similar other resources? One implies intent, another simply lacks the extra work to remove potentially infringing data (and would probably not do so 100% if there's no human intervention).

                      "It wasn't a blank search engine, it was a guide to pirating."

                      IMDB also holds every title you can get on KAT, it simply lacked the torrent link. So, by your standard, IMDB is a guide to pirating, even though people had to use a different search engine to find the actual file.

                      "If a guy in the UK sells a pirated CD or VHS tape that was made in France, he gets prosecuted in the UK under UK laws, even if the item was made somewhere else."

                      But, in the real world example I gave, the guy is located in France and was never prosecuted. It's only since the "on the internet" was added that he's now being prosecuted despite never having set foot in the UK.

                      Do you understand the difference yet, or are you again demonstrating that the wilful ignorance you display is not an act?

                      "If you stand back, it's not hard to see that drugs are being sold."

                      Indeed. And, as you are repeatedly told despite your attempt at smug ignorance, this is why people advocate going after the gangs, not the market they happen to sell the drugs in.

                      Yet, you insist on lying about the people telling you this rather than face their actual words.

                      "So yeah, points addressed. Now can you manage it without personal attacks?"

                      Sorry, you continue to be a disingenuous ass, so I will call you out for it. There is an easy way to stop being accurately labelled as such, but you're the one who need to action it.

                      reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 11 Aug 2017 @ 3:19pm

                Re: Re: Re: Re: Re: Re:

                You should read a counterpart article by David Newhoff at his blog The Illusion of More. It thoroughly debunks the article presented here.

                reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 8 Aug 2017 @ 12:18am

      Re:

      "Something similar has already happened in Europe in relation to sharing a URL, and it's not actually a bad idea."

      You really don't think that criminalising LINKS is a bad idea? Wow.

      "Why shouldn't the definition of piracy expand to reflect new technologies?"

      Because piracy is a bullshit word to apply in the first place? The term is "copyright infringement", and the definition of that doesn't change because you copied data instead of a VHS tape.

      reply to this | link to this | view in chronology ]

  • icon
    Get off my cyber-lawn! (profile), 7 Aug 2017 @ 2:56pm

    ATT owes someone a CRAPLOAD of money!

    Based on the judge's interpretations of law in this case, AT&T may be held CRIMINALLY LIABLE of facilitating the "Nigerian Prince" scams since it provided the technology and ability for the actual criminals to use.

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 7 Aug 2017 @ 3:43pm

    The Copyright Cartels are now represented by the Keebler Elf... someone file a trademark lawsuit & distract from the train wreck our law is being contorted into for the benefit of a few rich players.

    reply to this | link to this | view in chronology ]

  • identicon
    tin-foil-hat, 7 Aug 2017 @ 6:34pm

    What if Iran or, China or North Korea asks

    Will we be extraditing Americans for breaking other country's laws? I hear China is pretty strict about what their citizens can or cannot have access to.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Aug 2017 @ 9:57pm

    Mike Masnick just hates it when copyright law is enforced.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Aug 2017 @ 10:38pm

      Re:

      How's that Paul Hansmeier defense fund coming along, bro?

      reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 7 Aug 2017 @ 10:51pm

      Re:

      You hate it when due process is enforced.

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 8 Aug 2017 @ 12:19am

      Re:

      When, as in this case, it's the law of a country the person charged with it has never once set foot in? Yeah, that's something to hate, alright, even if your tired lie wasn't bad enough.

      reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 8 Aug 2017 @ 6:34am

      hating it when copyright law is enforced

      Have you seen copyright law in the last century?

      It has ceased to be a promoter of sciences and useful arts, and has become a device to tax culture and nail down speech.

      The only people who don't hate it when copyright law is enforced are those who get a wad of cash anytime somebody says something too similar to what they said.

      It's really fucked up, and as we've established many times before, no copyright system whatsoever, as bad as that could get, would be better than the legal quagmire we have today.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Aug 2017 @ 3:39am

    perversion of justice

    ... in the name of the media industry. Thank you very much for showing that the US care only about big business and not about being a constitutional state.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Aug 2017 @ 2:50pm

    crooked judge.

    once he is in custody, he is not a fugitive. extradition stage is irrelevant.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 8 Aug 2017 @ 5:53pm

    This is part of their long game. They really don't care about Vaulin personally. KAT itself is just a fly to swat.

    Congress isn't going to be making any changes to copyright law anytime soon, so what they want is a common law precedent. They want a U.S. federal court to say that a website or domain owner can be held criminally responsible for enabling its users' piracy.

    They are starting with the low-hanging fruit: someone whose hands are dirty and whose domain was pretty much exclusively used for piracy. It is just like they've done and continue to do in civil cases. They're using easy targets to establish precedents in their favor.

    The real prize they seek is leverage against Big Search, every kind of UGC platform, ISPs, OS makers and device manufacturers. This is all about regaining total control over distribution.

    They're basically winning. It may not look like it because you can still access and share pirated content with relative ease and anonymity, but that's not going to last forever. Or at least, that's what they're trying to do.

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 8 Aug 2017 @ 9:43pm

      Thieves and beggars, never shall we die.

      The sharing community has already moved on to magnet links (which don't require trackers to be exchanged, just a hash code of the desired file set), and the tribbler tech is moving us towards a community that doesn't even need tracker sites.

      So, yeah, I think piracy may not be the end game but controlling the toolmakers.

      Of course, if they go that way, it may take searches underground, so that search requests and data are separated from the locations or identities of those who ask for or supply them. At that point, attaining a ten-year-old movie will have the same risk (and possibly the same criminality) of attaining child porn or a beheading video.

      ...or IED building instructions.

      ...or classified government data.

      Big media may not care about casualties. They never have before. This is an in for a penny situation. Media piracy doesn't slow down until there's a non-piracy way to get media that is more attractive. And if big business drives common folk to ally with perverts and terrorists, well, then they may start empathizing with their causes as well.

      I expect our peerless leaders weuldn't want that.

      reply to this | link to this | view in chronology ]

      • icon
        Uriel-238 (profile), 8 Aug 2017 @ 9:45pm

        Re: Thieves and beggars, never shall we die.

        This is why I

        ...I think curbing piracy may not be the end game of this attack on KAT but rather control of the toolmakers

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 8 Aug 2017 @ 11:47pm

          Re: Re: Thieves and beggars, never shall we die.

          Its not just control of the tool makers that they want, they want to restore their position as the controllers, and profit takers, of all content published.

          reply to this | link to this | view in chronology ]

  • identicon
    Kevin Hayden, 8 Aug 2017 @ 6:53pm

    Aiding and abetting who?

    I'm confused. If Vaulin is being accused of aiding and abetting criminal copyright infringement where are the folks who actually committed the infringement? Shouldn't they at least have been charged with criminal copyright infringement prior to Vaulin's arrest? If no one has been arrested/charged/convicted of criminal copyright infringement using Vaulin's website and torrents how can he be on the hook for anything?

    If no criminal act was committed by an end user then how can Vaulin be extradited under criminal law? It looks like the USA is making up its own criminal laws on the fly at the behest of the copyright holders in order to unjustly get access to civil defendants via the back door. Same thing probably applies to the Kim Dotcom case.

    reply to this | link to this | view in chronology ]


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