'If KickassTorrents is a Criminal Operation, Google Should Start Worrying' (torrentfreak.com)

An anonymous reader writes: Polish authorities have extended the arrest of Artem Vaulin, the alleged owner of KickassTorrents. His defense team is currently preparing to fight the U.S. extradition request, which will start next month. According to Artem's U.S. lawyer, operating a torrent site is not a criminal offense. "In fact, in my opinion operating an index search engine cannot constitute a crime in the United States because secondary infringement is not criminalized under US law. If KickassTorrents is a criminal operation, then Google should start worrying," Gurvits says

Comments

Good joke

[Fwipp]

Contrary to the belief of nerds everywhere, intent matters a lot in court.

Google having a search engine to help you find anything on the internet is very different than running a torrent site that is obviously designed to facilitate piracy.

(Sure, yeah, there's like 3 linux ISOs on there, and probably Big Buck Bunny. But the overwhelming majority is infringing content.)

Re:Good joke

[Areyoukiddingme]

So does the law. If his lawyers claim that secondary infringement is not a criminal offense in the US is true, why is he being extradited to the US?

Money laundering. They tacked that on in hopes that Polish authorities don't really think too much about how receiving money isn't a crime if you weren't committing a crime. And he wasn't.

But...

... the alleged owner is charged with conspiracy to commit criminal copyright infringement, conspiracy to commit money laundering, and two counts of criminal copyright infringement.

I haven't read Title 17 in a while, but last I checked, there's no such thing as "conspiracy to commit criminal copyright infringement." I'm sure Slashdot's legion of not-lawyers will correct me if I misremember. Mostly they're going to try to swing this on proving that he personally violated copyright in such a way as to fall afoul of the criminal provisions of US law for which Poland has an equivalent criminal offense, per the terms of the US/Polish extradition treaty of 1996. That treaty stipulates that only offenses which carry a maximum of penalty of more than a year in prison in both jurisdictions are extraditable. There is no US copyright infringement criminal penalty that includes jail time of any term. Remedies include injunction, impounding of infringing material (when it's physical), statutory fines, and/or actual monetary damages. That's it.

Addendum: Ok, I've read 17 U.S. Code 506 again. There's no such thing as conspiracy to commit criminal copyright infringement. And Artem Vaulin is not extraditable.

Now we'll see just how anxious Polish authorities are to please the US, and just how much the law matters. Or not.

Re:Good joke

[SuricouRaven]

You're quite wrong on the prison thing. Copyright infringement in the US has been a criminal act with a maximum five years jail term in the US since the NET act was passed in 1997.

Re:Good joke

[Trickster Paean]

You won't find criminal conspiracy in Title 17. You'll find it in Title 18, along with a number of other criminal statutes. Specifically, read 18 U.S. Code 371 - Conspiracy to commit offense or to defraud United States.

The pertinent part that applies is, "If two or more persons conspire either to commit any offense against the United States, ... and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both." In that part, "offense against the United States" refers to any federal, as opposed to state, criminal offense.

So, there is such a thing as conspiracy to commit criminal copyright infringement. It is an application of the federal criminal conspiracy statute, 18 U.S. Code 371, to the criminal copyright infringement statute, 17 U.S. Code 506.

Additionally, if you read the US/Polish extradition treaty you linked to, you see that, in the words of then-Secretary of State Albright, "Article 2(2) specifies that an extraditable offense also includes an attempt to commit or participation in the commission of an offense, or a conspiracy to commit (under United States law) or any type of association to commit (under Polish law) an offense as described in Article 2(1)."

So Artem Vaulin is extraditable. Thankfully, the law does matter, and both the US and Poland seem to be following it.

Problem is they're different

[MikeRT]

Google is a general purpose search engine. I can pretty much guarantee you that if CraigsList decided to deliberately (as in by policy) open sections for transacting in hard drugs, child sex and such that they would get pounded into the ground about as ferociously by federal law enforcement. It is a matter of intent. Google takes reasonable steps to allow people to remove infringing and illegal activity. This site is based primarily on facilitating that.

Re:Problem is they're different

[silentcoder]

1) Secondary infringement is still not a crime in the US - or any other Berne Signatory country.
2) KickassTorrents actually had a better record of obeying DMCA takedown notices than Google - having obeyed 100% of all legitimate takedown requests and no false positives.

In case you were wondering the number of legitimate DMCA takedown requests kickasstorrents have received is zero. None of them could possibly, ever, be legitimate. The DMCA is a US law and does not apply to site owners in other countries. They are not bound to obey it's terms, or to obey any notice issued under it.

The reality is that no crime was committed here - and extradition should be denied. As it happens extradition treaties have a number of specific restrictions which are pretty much universal and all say this must be denied.
Firstly extradition can only happen if the alleged activity is a crime in BOTH countries. You cannot be extradited for doing something that is legal in the place where you did it. In this case, the activity is not a crime in EITHER country. It may be a civil infringement - but that is not a crime, cannot be grounds for extradition, cannot be pursued by the state - and importantly, cannot happen across border. You can sue a foreigner only for things which are a infringements in his own country, using his own country's laws in his own country's courts. The plaintiff being the one who has to operate in a foreign court. That isn't what is happening here anyway so the point is moot.
Furthermore extradition treaties only apply if the punishment for the aleged crime is similar in both nations. Plenty of non-death-penalty countries for example have a blanket refusal to extradite anybody to a death-penalty country for any capital crime, even if that crime was committed on the soil of the other country. That didn't happen here either. The US punishment for criminal copyright infringement (which this wasn't) is significantly harsher than most other countries so there's a pretty good chance this case doesn't meet the 'similar punishment if guilty' test.

There is no *sane* or just legal system that would approve this extradition request. The case then, becomes a very public test of the sanity, independence and commitment to justice of the Polish judiciary.

Google is fine.

[Anonymous Coward]

Unlike when you write software, the intention of your actions plays an important part in the court room.

Google indexes everything, then makes some attempt to reduce the impact of any unintended copyright infringement. It does not pretend that copyright law does not apply to it, even if some of the decisions it makes regarding this are boneheaded. Additionally, google serves a purpose in the world, even without the copyright infringement it occasionally facilitates.

Kickass torrents on the other hand, knew what it's website was being used for and didn't give a crap. It's practical usefulness is none if you take away the copyright infringement. The owners intended for it to be used as a vehicle for such and never made an attempt to otherwise stop it. So it is not surprising that they get aggressively pursued by authorities, while Google doesn't.