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KickassTorrents Lawyer: 'Torrent Sites Do Not Violate Criminal Copyright Laws' (arstechnica.co.uk)

Posted by BeauHD on from the international-law dept.

An anonymous reader quotes a report from Ars Technica: Lawyers representing Artem Vaulin have filed their formal legal response to prosecutors' allegations of conspiracy to commit criminal copyright infringement, among other charges. Vaulin is the alleged head of KickassTorrents (KAT). KAT was the world's largest BitTorrent distribution site before it was shuttered by authorities earlier this year. Vaulin was arrested in Poland, where he now awaits extradition to the United States. "Vaulin is charged with running today's most visited illegal file-sharing website, responsible for unlawfully distributing well over $1 billion of copyrighted materials," Assistant Attorney General Leslie Caldwell said in a July 2016 statement. The defense's new 22-page court filing largely relies on the argument that there is no such thing as secondary criminal copyright infringement. While secondary copyright infringement as a matter of civil liability was upheld by the Supreme Court in MGM v. Grokster in 2005, Vaulin and his associates have been charged criminally. "The fundamental flaw in the government's untenable theory of prosecution is that there is no copyright protection for such torrent file instructions and addresses," [the brief's author, Ira Rothken,] argued in his Monday motion to dismiss the charges against Vaulin. "Therefore, given the lack of direct willful copyright infringement, torrent sites do not violate criminal copyright laws." "The extradition procedures have formally been started by the US in Poland," Rothken told Ars. "We are in a submissions or briefing period, and our Polish team is opposing extradition." Rothken also said that he has yet to be allowed to meet or speak directly with his client. For now, Rothken has been required to communicate via his Polish counterpart, Alek Kowzan. "Maybe they are afraid that Artem's extradition defense will be enhanced if American lawyers can assist in defending against the US extradition," Rothken added. No hearings before US District Judge John Z. Lee have been set.

45 of 80 comments (clear)

  1. Cool story bro by bcarson · · Score: 5, Insightful

    What's really important is that the judges agree.

    1. Re:Cool story bro by penguinoid · · Score: 4, Insightful

      What's really important is whether the judge follows the law or makes a ruling that is against the law because the judge thinks the law is flawed and should be changed at his discretion.

      --
      Don't waste your vote! Vote for whoever you want, unless you live in a swing state it won't matter anyways
    2. Re:Cool story bro by KingBenny · · Score: 5, Interesting

      i think we all know the actual trial is a farce and the decisions have already been made ... same for demonoid, tpb and all the rest i mean ... EXTRADITION, helllooow ?
      in fact they dont host content so i agree they dont violate shit, and the argument of facilitation is bullshit since smartphones, google, and your fingertips also make it easier to address the content through a certain channel
      load of american horsecrap ... im almost starting to suspect myself of being anti-american today but you gotta admit .... the last two weeks ???
      the textbook definition of OTT

      --
      Free speech was meant to be free for all... how can anyone grow up in a nanny state ?
    3. Re:Cool story bro by GrpA · · Score: 1

      What's even more important is that any information such as this is presented before the judges, so that they can exercise their discretion in the first place. Judges are just like computer programs. They only process what they are given.

      --
      Enjoy science fiction? "Turing Evolved" - AI, Mecha, Androids and rail-gun battles. What more could you want?
    4. Re:Cool story bro by PMuse · · Score: 1

      Can we please stop posting stories that amount to:
      Lawyer Says His Client Wasn't Wrong?

      Irrespective of whether any particular guy was wrong or not, his lawyer talking about it is almost never news.

      --
      "We reject as false the choice between our safety and our ideals." --The American President (20.1.2009)
  2. Extradition? by Anonymous Coward · · Score: 3, Insightful

    I don't get how everybody on this planet an his dog can be extradited to the fucking USA at their whims. The guy isn't even a US citizen...

    1. Re:Extradition? by Narcocide · · Score: 1

      Its based on a prior agreement.

    2. Re:Extradition? by freeze128 · · Score: 2

      Maybe because Hollywood is in the US....

    3. Re:Extradition? by Anonymous Coward · · Score: 1

      It's not a two way street. Good luck getting a Yank extradited anywhere. ex. Gonzalo Sánchez de Lozada...etc

    4. Re:Extradition? by BarbaraHudson · · Score: 4, Informative

      And if it's not a crime in the country where the person being sought is staying, it's generally not extraditable. Canada is one such country where the treat with the US allows Canada to refuse to extradite such a person. Another reason in the same treaty is if the extradition is of a political nature:

      Article 4, section 1, subsection iii

      (iii) When the offense in respect of which extradition is requested is of a political character, or the person whose extradition is requested proves that the extradition request has been made for the purpose of trying or punishing him for an offense of the above-mentioned character. If any question arises as to whether a case comes within the provisions of this subparagraph, the authorities of the Government on which the requisition is made shall decide.

      Additionally, Canada can refuse to extradite in cases where the death penalty is in play unless the US agrees beforehand not to seek it, of if such judgment is made, not to follow through with it. And in the case of minor children, extradition can be refused if it is determined that such extradition

      ARTICLE 5

      If a request for extradition is made under this Treaty for a person who at the time of such request, or at the time of the commission of the offense for which extradition is sought, is under the age of eighteen years and is considered by the requested State to be one of its residents, the requested State, upon a determination that extradition would disrupt the social readjustment and rehabilitation of that person, may recommend to the requesting State that the request for extradition be withdrawn, specifying the reasons therefor.

      ARTICLE 6

      When the offense for which extradition is requested is punishable by death under the laws of the requesting State and the laws of the requested State do not permit such punishment for that offense, extradition may be refused unless the requesting State provides such assurances as the requested State considers sufficient that the death penalty shall not be imposed, or, if imposed, shall not be executed.

      It can be argued pretty easily that Snowden, Manning, and Assange all have a defense under Article 2.1(iii) to have safe haven in Canada, since the whole mess has taken on a HUGE political angle, overshadowing everything else. Unfortunately, Obama's kill list has no geographical limit - it's fine to kill Americans anywhere in the world, even in the USA, in violation of their constitutionally protected right to due process. Looks like Obama is taking a page from Bush's "the constitution is just a damn piece of paper" playbook and ran with it.

      --
      "Transparent" is a shit show that trades on every stereotype going. A man in drag is NOT a transsexual.
    5. Re:Extradition? by OneHundredAndTen · · Score: 2

      It's why Snowden is still in Commie Russia.

      Autocratic Russia, yes. Commie, no.

    6. Re:Extradition? by Anonymous Coward · · Score: 3, Informative

      Whats really ironic is he was extradited from poland.

      One of the countries that won't hand over roman polanski for being a guilty as hell pedo.

      rape kids? thats ok. put up a website? we'll hand you right over.

    7. Re:Extradition? by UnknownSoldier · · Score: 3, Interesting

      /sarcsam Because America has the "best" government money can buy son.

    8. Re:Extradition? by Trickster+Paean · · Score: 3, Interesting

      The U.S. is one of the few countries that does not block extradition of its own citizens (cf. Brazil, China, France, Germany, Japan, etc.). Getting a Yank extradited pursuant to one of the 109 bilateral treaties the U.S. has signed is very possible, even if the reciprocating party will not extradite its own citizens.

      Gonzalo Sánchez de Lozada wasn't extradited under the U.S. Bolivia Extradition Treaty because there is no comparable crime under U.S. criminal law like the one he is charged with in Bolivia. The crime of genocide under Bolivian law, which includes massacres without a specific intent requirement, has no comparable equivalent under U.S. law. Therefore, the charge failed the dual criminality requirement of the treaty, and he wasn't extraditable.

    9. Re:Extradition? by Trickster+Paean · · Score: 1

      The argument that the kill list has no geographic limit is misguided at best, deliberately misleading at worst. The leaked white paper specifically says (emphasis added):

      "This white paper sets forth a legal framework for considering the circumstances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities..."

      The Obama administration has never claimed it is fine to kill Americans in the US. It has claimed that what delineates the battlefield is unclear when dealing with a non-state actor, and that under traditional laws of war a belligerent can be fought wherever it is launching or planning to launch attacks from. And it has only ever claimed that it is legal in a foreign country, not the U.S.

    10. Re:Extradition? by RandomSurfer314 · · Score: 1

      These treaties should be canceled or at least more limited, because (a) the US justice system does not really guarantee a fair trial, (b) US penal law has around 10 times higher maximum sentences than in the rest of the civilized world, so it is unreasonable from the perspective of other countries, (c) the US still allows and executes the death penalty, which violates human rights and is prohibited or no longer practiced in most other civilized countries (Japan being a notable exception), and (d) the US penal system defies human dignity and involves serious human rights abuses (e.g. permanent prison lock downs, solitary confinement, serious and sometimes even life-threatening malnutrition of inmates due to a diet based on calories rather than healthy ingredients, not adequately preventing rape and violence in prisons, etc.).

      You should point out the countless inadequacies of the US system to your local lawmakers to urge them to revise extradition treaties.

    11. Re:Extradition? by jdavidb · · Score: 1

      Bush's "the constitution is just a damn piece of paper" playbook

      Sidenote: I was trying to explain my beliefs on politics to my son earlier this week, and decided to look up this quote on the fly while I was telling him about it. I learned that there's no evidence Bush ever actually said this. Although he did certainly act like he felt that way.

      I realize you're not necessarily asserting that Bush actually said it - but I thought you might be interested. It was interesting to me.

      --
      Secession is the right of all sentient beings.
    12. Re:Extradition? by thegarbz · · Score: 1

      /sarcsam Because America has the "best" government money can buy son.

      What was sarcastic about that comment?

    13. Re:Extradition? by UnknownSoldier · · Score: 1

      sarcasm, noun; the use of irony to mock or convey contempt.

    14. Re:Extradition? by thegarbz · · Score: 1

      There's nothing ironic, mocking or conveying contempt about your perfectly ordinary and true sentence.

    15. Re:Extradition? by UnknownSoldier · · Score: 1

      That's why I put "best" in quotes.

    16. Re:Extradition? by thegarbz · · Score: 1

      Sorry. I get it now, must have been a slow week for me :-)

    17. Re:Extradition? by BarbaraHudson · · Score: 1

      Just because it "sets forth a legal framework for considering the circumstances in which the U.S. government could use lethal force in a foreign country outside the area of active hostilities" doesn't mean that it's going to be limited to foreign countries. Stop being naive. The CIA wasn't supposed to do any domestic spying either.

      --
      "Transparent" is a shit show that trades on every stereotype going. A man in drag is NOT a transsexual.
    18. Re:Extradition? by BarbaraHudson · · Score: 1

      You're right, of course. The Author (Doug Thompson) has since retracted the story.

      --
      "Transparent" is a shit show that trades on every stereotype going. A man in drag is NOT a transsexual.
  3. He's also charged with money laundering. by BitterOak · · Score: 2

    Although I personally don't think the "crime" of money laundering should even exist, it does exist and it is a criminal matter. Even if secondary copyright infringement is a purely civil and not a criminal matter, he is also charged with money laundering and could be extradited on those grounds.

    --
    If I can be modded down for being a troll, can I be modded up for being an orc, or a balrog?
    1. Re:He's also charged with money laundering. by bloodhawk · · Score: 2

      have to disagree on the money laundering part. The creation of money laundering laws was pretty much essential to prevent organised crime from hiding ill gotten gains by pumping them through shop fronts, casinos and international exchanges and then labelling their proceeds of crime as legitimate profits or winnings. Casinos, banks etc were more than happy to be complicit in these transactions as they got a healthy cut, you can't just ask nicely for them to not do this.

    2. Re:He's also charged with money laundering. by Anonymous Coward · · Score: 2, Insightful

      I think the point is that everything covered by money laundering is covered by other laws that were existing at the time, either the root crime generating the ill gotten gains, or the account fraud that takes place with laundering. The problem is that it's easier just to make up magic new laws than do police work.

    3. Re:He's also charged with money laundering. by LesFerg · · Score: 1

      I think the point is that everything covered by money laundering is covered by other laws that were existing at the time, either the root crime generating the ill gotten gains, or the account fraud that takes place with laundering. The problem is that it's easier just to make up magic new laws than do police work.

      I imagine that they got pissed off never catching the perp with his hand in the cookie jar, tho they could catch him later with the cookie in his hand.

      --
      If I had a DeLorean... I would probably only drive it from time to time.
    4. Re:He's also charged with money laundering. by DarthVain · · Score: 1

      This. Either the court case will barely even touch on IP, or if it does that portion of the case will be dismissed. However, they will get him on money laundering probably. Kind of like getting Al Capone for tax evasion. Not really what they arrested him for, but good enough to put him in jail.

  4. Re:It doesn't matter if you're violating the law by chuckugly · · Score: 2

    It's more like if you publish a map of where the banks are, and someone goes in and copies their letterhead, then YOU are a felon.

  5. Re:It doesn't matter if you're violating the law by Trax3001BBS · · Score: 1

    According to the copyright mafia, if you make it easy to violate their copyright then it's your fault.

    The case is well prepared, on page 6 of the motion are previous cases (past practice, normally called Precedence ) that back their claim https://www.documentcloud.org/...

  6. Because he had a server in the USA by ArchieBunker · · Score: 3, Interesting

    Everyone seems to miss this tiny detail. He had a server running in CHICAGO. Plus they tied the site to his personal email address. So he wasn't even trying to be discrete.

    --
    Only the State obtains its revenue by coercion. - Murray Rothbard
    1. Re:Because he had a server in the USA by Anonymous Coward · · Score: 1

      Everyone seems to miss this tiny detail. He had a server running in CHICAGO. Plus they tied the site to his personal email address. So he wasn't even trying to be discrete.

      No, he rented a server from someone in Chicago.
      It would be reasonable if the US government decided that they don't like if people rent servers to criminals and went after the one who actually committed a crime in the US.
      The problem here is that the one who owns the server is a company and the US government have decided that they don't have to follow the law so they try to go after the individual in another country instead.

    2. Re:Because he had a server in the USA by ArchieBunker · · Score: 1

      Using your logic I can host all the infringing content I please as long as someone else owns the hardware it runs on. I can also run over people with my car because the bank still owns it and they are therefor responsible. The bottom line is the court believes he was infringing copyright in the USA and sent a legal extradition order to Poland. What is the court supposed to do, subpoena the hardware itself?

      --
      Only the State obtains its revenue by coercion. - Murray Rothbard
  7. Re:OMFG HE HAD A SERVER IN AMERICA?!!? by xvan · · Score: 1

    That's a slippery slope, if an American agency is ever caught hacking via remote infrastructure, it may be treated as sovereignty violation and thus an act of War.

    Of course nobody would do anything against the Big Bully, until you get a government crazy enough to do. We had a Chavez, we have a Kim, we may even have a Trump, so I'd rather not have that sort of jurisprudence.

  8. Re:OMFG HE HAD A SERVER IN AMERICA?!!? by DrXym · · Score: 1

    The "retarded point" is that by operating a server facilitating piracy and copyright theft on US soil he stands accused of committing a crime in that jurisdiction and therefore he faces extradition. Most countries will extradite if the crime committed in the other jurisdiction has a comparable offence and in their own. So it's up to the lawyers to persuade the courts that he could not be tried in for such an offence in Poland to stand any chance for the extradition to fail.

  9. But... eBay..?? by Harold+Halloway · · Score: 5, Interesting

    I've never understood why KAT, TPB et al are considered to be the very epitome of modern day evil, yet eBay can carry on selling fakes and bootlegs by the tens of thousands apparently unmolested by the US authorities?

    1. Re:But... eBay..?? by thegarbz · · Score: 1

      Intent. ebay is first and foremost a shopping mall. For everything you find on there that's fake, I'll show you 10 things that are not.

      KAT on the other hand was first and foremost a platform for copyright infringement. Sure you may say it was just about tracking torrents, but when the specific criteria and options presented are given only for copyright infringement and the daily top 10 is purely based on copyright infringement and they even provide you with a nice voting system to identify if the infringing torrent is fake one could argue the express purpose of the site is to make money off copyright infringement.

  10. Re:OMFG HE HAD A SERVER IN AMERICA?!!? by mrbester · · Score: 1

    Not just that. As "secondary copyright infringement" had only been ruled on, incorrectly, in a civil case in US and such a concept doesn't exist in Poland or indeed anywhere else, there is no criminal case in the first place. There is no extradition for civil "offences" (quoted because the offence doesn't exist except in mealy-mouthed law twisting Hollywood asshole imaginations), so the request is invalid.

    Where is the extradition request for Google Ireland board members for doing the same thing? They have servers in US as well...

    --
    "Wait. Something's happening. It's opening up! My God, it's full of apricots!"
  11. I am Kickasstorrents by nukenerd · · Score: 1

    I am Kickasstorrents

    1. Re:I am Kickasstorrents by Harold+Halloway · · Score: 1

      I am Groot.

    2. Re:I am Kickasstorrents by Zontar+The+Mindless · · Score: 1

      I am Zontar. Pleased to meet yas.

      --
      Il n'y a pas de Planet B.
  12. Meanwhile lawyers request delay... by Moskit · · Score: 1
    ...of his extradition trial based on:
    • - lack of sworn translation to Ukrainian, so that their client can read it more directly than going through American->Polish->Ukrainian lost-in-translation sequence. (dimissed by judge)
    • - extremely poor translation of USA documents (150 pages) to Polish. For example movie title "Deadpool" was written literally meaning "A non-living swimming pool". Multiple other sentences make no sense or have a different meaning than USA original. (judge asked lawyers to present all such examples for re-translation)
    • - lack of access to servers and emails, which contain information neccessary to defense against extradition - they were immediately sent to USA. (rejected, as extradition trial does not determine if there was a crime, only if crime would be punishable in Poland),
    • - poor health (back problems). (unclear)
  13. Shooting the messenger by MoarSauce123 · · Score: 1

    How many counterfeit and copyrighted items do the USPS, UPS, FedEx, DHL, etc transport on a daily basis? Following the logic applied to torrent sites, these businesses need to receive cease and desist orders as well and have their CEOs / Postmaster General dragged into federal courts for actively aiding copyright infringement. The claims are totally ludicrous.

  14. eBay's "committment" against forgery by phorm · · Score: 1

    eBay's "committment" against forgery is complete and utter bullshit. I bought a DVD series from a seller overseas (it was not a domestic series) who had lots of listing proudly proclaiming he doesn't sell bootlegs. DVD's arrive, and the first few episodes have the same shitty fan-subs that would see with crap downloaded online. Some episodes even have the f***ing scan-lines where they were recorded to DVD from an analogue source. The only thing that looked remotely legit about them was the silkscreening and some box art.

    eBay's response: You need to get a professional in the industry to provide a written attestation that the goods are counterfeit, within the next 30 days.

    Within the podunk town I was living at the time that was pretty much impossible, and thus the seller got to keep my money for what was essentially fancy cardboard and crappy burned downloads.