So just as the US government itself is accused of being engaged in massive copyright infringement
itself, the Justice Department proudly announces that it has charged the owner of Kickass Torrents with criminal copyright infringement
claims. The site has also been seized and the owner, Artem Vaulin, has been arrested in Poland. As with the original Kim Dotcom/Megaupload indictment
, the full criminal complaint
against Vaulin is worth reading.
As with the case against Dotcom/Megaupload, the DOJ seems to ignore the fact that there is no such thing as secondary liability in criminal infringement. That's a big concern. Even though Kickass Torrents does not host the actual infringing files at all, the complaint argues that Vaulin is still legally responsible for others doing so. But that's not actually how criminal copyright infringement works. The complaint barely
even shows how Vaulin could be liable for the infringement conducted via Kickass Torrents.
But, of course, that doesn't matter because the guy at Homeland Security Investigations (formerly: ICE: Immigrations & Customs Enforcement) just spoke to the MPAA and the MPAA said that Kickass Torrents had no permission to link to their content. Yes, link.
As part of the investigation, I have communicated with representatives
of the Motion Picture Association of America (MPAA) regarding this investigation.
The representatives provided me with information the MPAA had developed about
KAT, among other websites. The representatives stated that the MPAA closely
monitors KAT and that a significant portion of the movies available on KAT are
protected by copyright. The representatives also specified that the MPAA has not
granted permission to KAT to index, link, frame, transmit, retransmit, provide
access to, or otherwise aid or assist those who distribute and reproduce infringing
copies of copyrighted motion picture or television content of MPAA members.
Here's the thing: most of those things listed above are not rights granted by the copyright act. The copyright act is pretty specifically limited to a few rights, including reproduction and distribution. But, again, note the games played in the complaint: "index, link, frame, transmit, retransmit, provide access to" don't directly infringe on the stated copyright exclusive rights (yes, there are some cases
of the above may
infringe on some
of the exclusive rights, but it's not particularly cut and dry). So instead, the government tosses in this "otherwise aid or assist
those who distribute and reproduce infringing
copies of copyrighted motion picture or television content."
So, you see, once again, the government is creating a form of secondary liability for copyright infringement that does not exist in the law
. That's a problem. Because that's not how criminal copyright law works. At all.
Furthermore, the complaint goes on about how KAT, as it calls Kickass Torrents, rejected DMCA takedown notices for a variety of reasons, but leaves out the fact that KAT is not an American company and is not under the jurisdiction of US laws. So I'm not entirely clear why US copyright laws apply here. The best they can do is note that they found a few servers that were apparently in Chicago.
The complaint spends lots of time on the fact that KAT makes a fair bit of money from advertising revenue. But, again, I'm not entirely clear how that's relevant to the claim of criminal copyright infringement. The implicit argument is clearly "people go to KAT to get infringing content, the site makes advertising from all that traffic, thus the revenue is ill-gotten gains." But... again that relies on the idea that KAT itself is engaged in criminal behavior. Creating a popular tool for finding content -- some of which may be infringing -- and then making money from advertising, are separate things. It seems wrong to make this weird if->then conditional assumption that just because the site made lots of money it was infringing.
No one is suggesting that Kickass Torrents was not regularly
used by individuals to infringe on copyrights. It was. A lot. And you can argue how horrible that is and how it was killing Hollywood and all that -- but the specifics here do
matter. The same arguments were made about the VCR for years. After all, the MPAA insisted that it was used exclusively to infringe on content for years until they finally realized that it was a good idea to release content for the home video market. And, again, the US government isn't allowed to make up criminal liability concepts that aren't actually in the law. They, and their supporters, of course will now argue that it's not about secondary liability, but about "aiding and abetting." But that argument doesn't fly either. The standards for aiding and abetting are much more involved -- and would require that the actual infringement be criminal
. But that won't fly, because the individuals downloading via Kickass Torrents weren't violating criminal copyright law themselves.
In other words, the DOJ is trying to argue that helping a bunch of people engaged in civil copyright infringement magically turns into criminal aiding and abetting. But that's not how the law works.
Meanwhile, the DOJ's press release on this is filled with all the usual insane bluster:
"Copyright infringement exacts a large toll, a very human one, on the artists and businesses whose livelihood hinges on their creative inventions," said U.S. Attorney Fardon. "Vaulin allegedly used the Internet to cause enormous harm to those artists. Our Cybercrimes unit at the U.S. Attorney’s Office in Chicago will continue to work with our law enforcement partners around the globe to identify, investigate and prosecute those who attempt to illegally profit from the innovation of others."
Funny. Is he also going to charge the US Navy for its massive copyright infringement? Or is that not the kind of copyright infringement harm Fardon goes after?
"Vaulin is charged with running today’s most visited illegal file-sharing website, responsible for unlawfully distributing well over $1 billion of copyrighted materials," said Assistant Attorney General Caldwell. "In an effort to evade law enforcement, Vaulin allegedly relied on servers located in countries around the world and moved his domains due to repeated seizures and civil lawsuits. His arrest in Poland, however, demonstrates again that cybercriminals can run, but they cannot hide from justice."
The $1 billion of copyrighted materials is a nice touch, but again represents merely the estimated cover price, not any actual losses to the industry. Not that the DOJ wants to admit that. But the next guy is even worse, no longer just claiming that over $1 billion was distributed, but directly stating that Vaulin stole
"Artem Vaulin was allegedly running a worldwide digital piracy website that stole more than $1 billion in profits from the U.S. entertainment industry," said Executive Associate Director Edge. "Protecting legitimate commerce is one of HSI’s highest priorities. With the cooperation of our law enforcement partners, we will continue to aggressively bring to justice those who enrich themselves by stealing the creative work of U.S. artists."
Aren't law enforcement people supposed to actually know the law? There was no stealing. There may have been copyright infringement using the tool that Vaulin built, but that's not stealing.
"Investigating cyber-enabled schemes is a top priority for CI," said Chief Weber. "Websites such as the one seized today brazenly facilitate all kinds of illegal commerce. Criminal Investigation is committed to thoroughly investigating financial crimes, regardless of the medium. We will continue to work with our law enforcement partners to unravel this and other complex financial transactions and money laundering schemes where individuals attempt to conceal the true source of their income and use the Internet to mask their true identity."
Illegal commerce? It was basically a search engine for free content. What illegal commerce happened there?
Yes, yes, lots of infringement happened via the site. No one denies that. But having law enforcement folks stand up and make clueless statements like this suggest they don't even understand
what Kickass Torrents did, and they just want to puff themselves up and look good for Hollywood.
Meanwhile: does anyone really believe that this move will cause anyone who used KAT to suddenly go back to purchasing movies?