'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

Hahahaha!

[SeaFox]

You think all companies are equal under U.S. law?

Re:Hahahaha!

[Guybrush_T]

+1

Re:Hahahaha!

[Press2ToContinue]

Double-plus good 1

Re:Hahahaha!

[Fire_Wraith]

In the USA, you get all the justice you can pay for - but that doesn't make you immune. The RIAA/etc would _love_ to go after Google too. Remember the Viacom lawsuit against Youtube? Don't think for a moment they're not itching to try another legal angle against Google (even as they happily benefit from using it to advertise - cognitive dissonance isn't something the music/movie industry has trouble with here).

https://www.eff.org/cases/viac...

Re:Hahahaha!

[Anonymous Coward]

Well lucky for the RIAA/MPAA etc if this works out, then they'll have legal president established and that's most of what matters in US law.

Re:Hahahaha!

[Berkyjay]

The law? Yes. Equal under the eyes of the justice system? No.

Re:Hahahaha!

[Orion Blastar]

It all depends on how much that company pays their lawyers to get around the law for them. Google and Microsoft and Apple can get away with using someone else's IP just by running up the court costs until the IP owner has to settle out of court in order to avoid more than their income in court costs.

Google's search engine serves links to torrents. If you Google "Windows 10 Torrent" you will find torrents that will download Windows 10 on Google's search. Does that mean Google is doing the same as KAT? I'd say yes to that, KAT is a torrent search engine and Google's search engine can find torrents for you too.

Re:Hahahaha!

[jarablue]

"In the USA, you get all the justice you can pay for - but that doesn't make you immune" No, you're right. Some people have that right built into their jobs. *cough* prosecutors *cough*. Must be nice to knowingly convict innocent people then go home and drink a glass of wine enjoying freedoms that you've taken from completely innocent people. I wonder if their lies even become truths to them after awhile? Talk about mentally un-fucking stable.

Money Talks

[Anonymous Coward]

Plebs walk. In chains.

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

[Anonymous Coward]

Link-crime now, thought-crime next. The real problem is, this is my tax dollars (as much as Trump's) doing this, and for the benefit of Mister Kite. It is one step removed from what the Nazis were.

Re:Good joke

[somenickname]

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

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? What crime will he be accused of? How many years will he spend getting raped in prison for the facilitation of moving ones and zeros? What fundamental harm to our society has he done that warrants that?

Re: Good joke

[Anonymous Coward]

Funny every time I didn't intend on speeding and got caught I still ended up paying the fine. Maybe intent matters when it works to their benefit, but never ours.

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

[ThatTreeOverThere]

If we can gather anything from the CIA black camps in Poland, it's that unless you're Roman Polansky (or probably any actual Polish citizen), the Polish are perfectly ready to sell you out.

Re:Good joke

[Fwipp]

How do you provably establish someone's intent?

Well you see, we have these people called judges, whose job it is to, y'know, judge these sorts of things.

We regularly convict people on circumstantial evidence, by the way. You've watched too many cop shows.

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.

Re:Good joke

[Trickster Paean]

The reason KAT was targeted for criminal enforcement was because KAT was operated for the purpose of commercial advantage or private financial gain. Specifically, they were selling millions of dollars per year in advertisements.

Follow the money. The main criminal problem isn't the copyright infringement that KAT aided and abetted by indexing torrent files - it's that they profited heavily through ad revenue from doing so. And when they did profit from ad revenue, they attempted and specifically intended in making the transactions to conceal the source, ownership or control of the funds.

First and foremost, this is a money laundering case. There is a much better case, from what has been presented so far, for the money laundering aspects of the case than for the copyright infringement aspects.

Re:Good joke

[bloodhawk]

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.

considering he is NOT the first person to be charged and successfully prosecuted for "conspiracy to commit criminal copyright infringement" I find it strange if there is no such law? quick search finds multiple people prosecuted for it and this https://www.law.cornell.edu/us... .

Re:Good joke

[91degrees]

The alternative is that we treat road accidents, and murdering someone with a car as the same crime. The only difference here is intent.

Re:Good joke

[91degrees]

How do you establish whether the person tried their best to drive safely?

Re:Good joke

[tsqr]

How do you provably establish someone's intent?

Well you see, we have these people called judges, whose job it is to, y'know, judge these sorts of things.

We regularly convict people on circumstantial evidence, by the way. You've watched too many cop shows.

Actually, it's the jury that has the job of judging these sorts of things. Judges rule on the law. Juries rule on the evidence that's presented.

Re:Good joke

[tsqr]

How do you establish whether the person tried their best to drive safely?

It's really not that difficult, though I doubt if "tried their best" would be the standard, as opposed to "weren't negligent". For example: Were they drunk? Were they speeding? Were they following too closely? Were they driving erratically? Were they not wearing required corrective lenses? Were they engaging in distracting behaviors? Was their vehicle properly maintained?

Re:Good joke

[tsqr]

If someone caused an accident because he/she were too busy with his/her smartphone? I don't see why that should be treated differently from someone intentionally running someone else over.

Because that's what the law says. As I understand it, intent "in the moment" is the difference between involuntary and voluntary manslaughter.

I Am Not A Lawyer, but here's my take: If you run over someone because you're on your phone, that's involuntary manslaughter. If you run over someone because they did something at that point in time to make you angry, that's voluntary manslaughter. If you run over someone because they did something yesterday that made you angry, that's second degree murder. If you study someone's habits to determine the best time and place to run over them, and then run over them, that's first degree murder.

Re:Good joke

[91degrees]

Fair enough. But I think it's the same with Google and Kickass Torrents. Were they responding to piracy complaints? Were they engaging in behaviour likely to attract pirates?

Re:Good joke

[DarthVain]

Money laundering...

Just a means to an end.

Absolutely

[colin_faber]

And so can any other information indexer. Slippery slopes and what not.

he better sneak in to Russia

[FudRucker]

go find Edward Snowden and see if he can sleep on his couch

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

[Anonymous Coward]

In this case they are a search index for torrents. So no the user is responsible for content. I'd say the better angle is the fact Google police's its content. I.E DMCA taken down notices for example. In which case kickass torrents wouldn't be getting the kind of users it's after. Intent but in a different way.

Re: Problem is they're different

[Anonymous Coward]

Its a matter of law. Please show me in the specific laws used to prosecute Kickass Torrents the "intent" section.

Re:Problem is they're different

[EEPROMS]

The law identifies generality and specifics in judgements, torrent indexing sites who's indexing database contain torrent links with a majority of them being illegal would be seen by the courts as criminal. Google on the other hand indexes everything not just torrents and even then Google does attempt to re-direct torrent queries to legal download sites.

Re:Problem is they're different

[TapeCutter]

Yep, it's all about intent, who here would be surprised if 99% of KAT traffic turned out to be pirated material?

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.

Re:Problem is they're different

[munch117]

1) Secondary infringement is still not a crime in the US

Except of course for aiding and abetting. Somehow the finest legal minds of Slashdot always forget that legal doctrine exists.

Re:Problem is they're different

[silentcoder]

You can only aid and abet something which is, in fact, a crime. It could be a crime to make a torrent of copyrighted material, it could be a crime to share it, and even to download it.
But telling people it exists is not a crime - so telling people that somebody else said it exists (which is what a search engine does) is even further removed from anything that's a crime.
If what KT did is aiding and abetting then it's also aiding and abetting to publish news reports of crimes as this could inspire other people to commit the same crime. Hell not to mention publishing vulnerabilities in software - it's a known fact that cyber criminals will sometimes use published vulnerabilities to attack private computer systems. We don't charge security researchers with aiding abetting criminals for telling people their software needs to be patched do we ?

Breaking into a house is a crime. Giving somebody lockpicks to break into a house with is aiding and abetting. But merely making lockpicks is not - they have plenty of legal uses after all. And sure as hell just mentioning that the locksmith round the corner may have a lockpick that can open your door is not aiding and abetting. The fact that a criminal could use this information doesn't mean it's illegal to tell you who can help you if you lock yourself out of your house !

Re:Problem is they're different

[munch117]

If you're a lock-pick maker, and 90% of your sales go to burglars, then you may very well be on the hook. Especially if you know it and do nothing.

I'm not saying that's what KT did, just that you can't absolve them in advance because they're in some logical category with a level of indirection from any actual crime. The law isn't math.

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.

Money and political influence makes right

[Anonymous Coward]

Operating an index search engine is not illegal in America but going against the wishes of the elite is. He is just lucky they haven't called a drone strike on his ass the pathetic plebian.

we need to start asking ourselves a lot of hard Q

[Lead Butthead]

When a citizen (in the least polite terms) of a two bit third world country where corruption is open and rampant thinks he has a better chance of a fair trial in his native land than the United States, we really need to start asking some hard questions about our government.

Kinda like YouTube.

[Anonymous Coward]

All the copyrighted movies and music you want! All free! It's way better than Mega ever was.

Re:we need to start asking ourselves a lot of hard

[Anonymous Coward]

Hei that is Poland not Russia.
I am sure you will say you know that.
If anything Poland is tending to emulate the US oligarchy model.
With a right wing government that don't want refugees and intends a total bans on abortion .
Pax Americana.

Extradition

[ArchieBunker]

He is being extradited to the US because the owner was dumb enough to have a server located in Chicago.

Re:we need to start asking ourselves a lot of hard

[kamapuaa]

He doesn't *want* a fair trial, he wants to be declared innocent and able to continue doing what he's doing. Whether it's "fair" or "unfair" isn't really relevant to him.

Re:we need to start asking ourselves a lot of hard

[Anonymous Coward]

Artem Vaulin is Ukranian, idiot. Therefore "When a citizen (in the least polite terms) of a two bit third world country where corruption is open and rampant [...]" is referring to Ukraine, not Poland.

As a Pole, it's always nice to see my countrymen keeping the 'Polish are dumb' meme alive via demonstration.

By their words. TV show category, no Linux categor

[raymorris]

> How do you provably establish someone's intent?

By their words, most often. Kim Dotcom sent emails saying they needed to get the newest Hollywood movies on the site faster. Kick Ass Torrents had several categories listed on it's front page - "TV Shows", "Movies", etc, no category for "Linux Distributions". Therefore it's quite clearly intended for torrents of TV shows, no of Linux distributions. HRC instructed her staff to remove the classification markings from files before sending them via email.

Intent matters!

[91degrees]

Geeks treat the law as computer code with no allowance for nuance or subjectivity.

There's the whole "reasonable man" test in law.

Using Google, looking at the nature of search results and the way people actually use it; and their attitude towards copyright infringement notices; as well as the quantity of material indexed, it is quite clear to most reasonable people that Google is a search engine.

Kickass Torrents is used almost exclusively to find material that is obviously not being shared by a legitimate copyright holder. Most of the material being indexed infringes copyright. A reasonable person would conclude that the purpose and intent of the site is to facilitate copyright infringement.

Re:Intent matters!

[91degrees]

You know, when you use the name "Hitlary", you lose all credibility.

Re:Intent matters!

[zifn4b]

Oh boy, everyone discussing the semantics of the argument like it's a new thing that hasn't already been to the Supreme Court. All you have to do is look at prior case law and we know exactly how this is going to go down. I guess enough time has passed that you kids don't know what things like Napster were.

Didn't you kids learn about this in history class yet? A&M Records vs. Napster

Re:Intent matters!

[91degrees]

The purpose of Kickass Torrent is to index Torrent, irregardless of what they contain. A real reasonable person would see that.

Okay, for the sake of argument, let's accept that that's all KAS does.

Did the proprietors of Kickass torrents notice that most of the torrents being indexed infringed copyright?

If not, are they really really stupid? If so, what measures did they take to put a stop to this?

If they took no measures, or inadequate measures, was this because of incompetence, or because they were making a lot of money through facilitating illegal copyright infringement? Given that other indexing sites such as Google manage to avoid having anything like that level why could KAS not do the same?

Would KAS have been a viable business if based entirely on the non-infringing content?

Re:Intent matters!

[91degrees]

No. Really. You come across as an idiot who uses pathetic childish insults because you're unable to come up with reasoned arguments.

Re:Intent matters!

[91degrees]

Irrelevant. Did you not notice that your neighbor was raping children? You fails to report crime in your area, perhaps you are guilty by association.

Aside from the fact that I'd feel a moral responsibility to do something about it if this was the case, my neighbour is not my customer. If I was facilitating him raping kids then you can be sure as hell the law would see it is my responsibility.

It is not their business to inspect torrent,

Yes it is! They should at least pay cursory attention to how their business is being used! Just because they try to abdicate responsibility doesn't mean they successfully do so!

In before but the torrent are ON KIckass.

Makes no difference either way.

Re:Intent matters!

[91degrees]

I find that one quite funny :)

Re:Intent matters!

[91degrees]

Sure you did not facilitating the raping of children, but you failed to go check in his house on a daily basis to see if children raping was happening.

In this analogy is he raping children outdoors, in public, in broad view of everyone, such that his behaviour is obvious even under a cursory inspection? Is he widely recognised as a child molester?

Failing to inspect your neighbor's house make you guilty of child molestation at the very least. By your dodgy logic anyway...

Why? He's not my customer. He's not my client. He's not using any of my facilities.

Peoples posting torrent are not their customers, peoples downloading torrent aren't their customer either. Their customer are the advertisers.

Nope. Both their users and their advertisers are customers. They receive a service in exchange for consideration (in this case viewing advertisements). This sort of argument wouldn't get you anywhere.

Make no difference either way? So they should be responsible to inspect torrent on other websites they do not control?

If by inspect you mean have a look at what their own site is indexing once in a while then yes. If they're indexing the torrents then of course they are responsible. They should have at least the faintest idea of the sort of stuff they're indexing!

I know, and I've used the site about half a dozen times! They run the bloody site, and you're suggesting that they have no idea. Honestly, the "the proprietors of Kickass torrents are complete and ignorant morons" argument really doesn't wash.

The Pirate Bay Redux

[zifn4b]

It's like the new old thing!

same but different

[hAckz0r]

They broke no law that I can see, but they are an enabling technology. An analogy might be that they are like a car rental company that advertises that they have the best get-away-cars money can rent, where as Google is yor normal Hertz or Avis car rental that checks references and credit status before renting. Its not the same thing to index files with the intended audience of thieves vs a general indexing service that tries not to attract the wrong people. Yes, they index legitimate torrents, but that might not be their intended audience. The qualifier is "intent", and that is what the US court system needs to prove, if the extradition is successful. For the time being they are presumed innocent under current US law, so extradition might be a problem as it should be.

Re:we need to start asking ourselves a lot of hard

[Gr8Apes]

When a citizen (in the least polite terms) of a two bit third world country where corruption is open and rampant thinks he has a better chance of a fair trial in his native land than the United States, we really need to start asking some hard questions about our government.

What makes you think he's going to be prosecuted in his native land? I'll pretty much guarantee you that the only reason he's under arrest is because the US pressured the Ukraine to arrest him.