Enough With the Legal Theories About Piracy

When it comes to enterprise-scale piracy, it would be great if those who advocate its existence would just make simple declarations like, “I want free media and don’t care how I get it.”  Sure, that would be a childish thing to say, but still less offensive than all the pretense to rationale that accompanies piracy—the absurd legal arguments, the mystical economic analyses, and above all, the lionization of pirate site operators as though they are social revolutionaries in a grand culture war.  (Never mind that some pirate sites are verticals for larger criminal enterprises engaged in some pretty horrible activities.)  

Of course, an entrenched attitude is not easily pried from the mind once it takes hold; instead, it usually becomes fossilized under layers of facile talking points posing as ideas.  Petty aphorisms like sharing isn’t stealing, for instance, help paper over an otherwise complex issue and excuse ignorance of the broader implications of a phenomenon like media piracy. In this regard, the public is constantly fed variations on the theme that operating a website, which is purposely designed to exchange infringing material and, by virtue of that exchange, earns its owners millions of dollars is somehow not criminal.

And that brings us to the complaint by the United States against alleged Kickass Torrents (KAT) site founder Artem Vaulin and his unnamed co-conspirators.  The complaint was filed in an Illinois District Court on July 8, 2016 and Vaulin, a Ukranian, was arrested while traveling through Poland that same month.  Insisting upon his innocence, Vaulin chose to remain in Poland’s Bialoleka prison—it sounds pretty awful from this account on The Verge—for nearly a year, rather than prove his innocence at trial in the United States. (I’d personally try to avoid the Polish prison even if I were guilty, but to each his own.)  Vaulin is now out on $108,000 bail, fighting extradition, and is represented by Silicon Valley attorney Ira Rothken, who also represents Kim Dotcom.

As reported last Friday, Vaulin filed a motion to dismiss along with a litany of arguments contending that the copyright infringement counts against him are not properly criminal indictments. All of these arguments were rejected by the Illinois court.  The motion to dismiss was denied under the fugitive disentitlement doctrine, which basically says that if an individual refuses to appear in a U.S. court (i.e. makes himself a fugitive), then he may not avail himself of court protections like motions to dismiss.

Vaulin is charged with four criminal counts comprising three counts of criminal copyright infringement (§506 of Title 17) and one count of money laundering.  The 50-page complaint, filed by the investigating Special Agent for the Department of Homeland Security, cites compelling evidence alleging that Vaulin was the founder of the KAT network; that he and his associates purposely designed KAT with the goal of hosting torrents containing infringing material; that they knew their conduct was illegal; that they provided incentive for users to engage in infringement; that illegal activity took place within the United States; that the KAT network generated about $17 million/year in revenue from traffic to infringing content; and that the owners sought to hide funds through dummy corporations in bank accounts set up in Latvia and Estonia.  Here’s just one highlight from the complaint that makes several points rather simply:

“March 29, 2011, when an individual reached out to Vaulin…with the subject line “new movies.” The individual asked about the movies Kung Fu Panda and The Hangover, remarking that people were asking for those movies. Vaulin replied that same day, noting that Kung Fu Panda was added six hours ago and that The Hangover was just added.”

As I say, I get the self-interested reasons why people rationalize what these site operators are doing; but when the indictment is handed down, let’s not pretend we’re straying into some ambiguous area of criminal law.  Piracy advocates and copyright antagonists are very fond of the refrain that the owners of a site cannot be held criminally liable for the activities of its users.  But there are several examples like the quote above indicating that the KAT site operators knew exactly what they were doing, and it’s frankly stupid to pretend otherwise.

Nevertheless, copyright antagonists like Mike Masnick at Techdirt place a lot of emphasis in this case on the supposed ambiguity of of secondary liability, which is a common law principle applied in civil copyright cases but for which there is no federal statute proscribing the conduct. The theory being applied is that if Vaulin and his colleagues merely own a platform on which infringement takes place, they themselves cannot be criminally liable.

Indeed this secondary liability issue is one of the arguments presented by Vaulin’s attorney; and it is true that there is no statute in Tile 17 (the Copyright Law), which explicitly states that aiding and abetting copyright infringement is a crime. In fact, Rothken asserts that because the 1909 Copyright Act explicitly criminalized secondary liability but the 1976 Act does not, this implies that Congress does not consider secondary liability to be criminal. Yeah…no.

In the 1909 Copyright Act, each criminal statute included its own aiding and abetting provision; but by the time the 1976 Act was written, the federal criminal code had been completely overhauled and included a general provision for aiding an abetting of all criminal violations against the United States.  Thus, the court rejected Rothken’s reasoning, stating that a separate aiding and abetting provision in the 1976 Copyright Law would have been redundant.  Title 18 §2 states:  (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. 

Thus, the Illinois court has held that if one is alleged to have helped people commit criminal copyright infringement, induced them to do so, rewarded them for doing so, and/or profited from their doing so, then one is properly charged with criminal copyright infringement.  And if that sounds like common sense, it’s because it is common sense.  And I will add that if this story were about trafficking in some less popular form of illegal activity—like snuff porn, or harmful counterfeit goods—I highly doubt that many average defenders of pirate sites would hope to see the law applied any differently.

I will not enumerate each of Vaulin’s defenses the court rejected, lest this post become unreasonably long and of interest to about ten law nerds.  But suffice to say that the defenses sound to this law nerd like a lot of grasping at straws. My personal favorite, though, is the assertion that torrents are not protected by the copyright law, and it is therefore not possible to infringe torrents.  That’s kind of like getting caught with a truckload of bootlegs and declaring that “audio tape isn’t illegal.”  As the court patiently explained, the torrents are the means to infringement, so it was a no-go on the twisted logic being applied there.

In his somewhat hand-wringing rebuttal to the opinions of the court, Masnick writes, “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.’”

He’s absolutely right.  And a plain, common-sense reading of the details in the complaint should make clear to any reasonable person that the government has met the burden to bring a criminal indictment in this case. The 2016 DOJ guidelines regarding consideration of criminal charges in IP cases recommend weighing several factors that define best practices independent of the the type of IP involved.  The recommendations consider factors such as deterrence, potential economic harm, public safety, recidivism of the actors, and the efficacy of civil proceedings in lieu of criminal charges.  Suffice to say, an enterprise operating at the scale of Kickass Torrents easily checks off several boxes under the guidelines.

I mention this broader view of IP enforcement because, as indicated above, it is a dangerous precedent—no matter how popular pirating movies and music may be—to wish that the law worked differently than it does, especially in the digital age.  We live in a networked world in which transnational IP infringement can mean tainted food or drugs or other unreliable products getting into the supply chain. Cyberspace is still a relatively new frontier for crime; and some pretty nasty characters have sought to argue the same kind of defenses being used in this case in order to distance themselves from the harm they cause simply because their presence is virtual.  So, to any parents who, as cited in the complaint, were asking for Kung Fu Panda on KAT, I’d say be very careful what you wish for.

© 2017, David Newhoff. All rights reserved.

Follow IOM on social media:

5 comments

  • Devlin Hartline

    Great post, David!

    The original criminal complaint listed four counts: http://lawtheories.com/wp-content/uploads/2017/08/US-v-Vaulin-Complaint.pdf

    The ultimate indictment by the grand jury lists 16 counts: http://lawtheories.com/wp-content/uploads/2017/08/US-v-Vaulin-Indictment.pdf

    Count 1: conspiracy to commit criminal copyright infringement
    Counts 2-12: aiding and abetting criminal copyright infringement (pre-release movies, one movie per count)
    Count 13: aiding and abetting criminal copyright infringement (10 or more works in 180-day period)
    Counts 14-16: money laundering

    The counts could be read to support direct criminal infringement too since Vaulin is alleged to have operated direct download sites. It doesn’t really matter though: aiding and abetting is the same as doing it yourself.

    There’s nothing novel about charging him with aiding and abetting. The only thing novel is his silly argument that aiding and abetting is not a crime.

    • Thanks for the comment, Devlin. And for adding further detail!

    • Whilst I certainly agree that there’s nothing novel about the general concept behind the charges, I do not recall a case of this sort as yet (Kim Dotcom notwithstanding) – despite the fact that the law could’ve likely been applied going back to Napster. I believe I’ve made such observations before.

      Given that the threat of criminal prosecution is probably the best chance to curb people’s enthusiasm for running pirate websites, I’d say it’s about time. Had Fanning et al done time, we likely wouldn’t be in this mess right now. It’s not like they didn’t know what was going on – everyone did. Getting pirated stuff for free was the whole point of the exercise.

      • Thanks, Faza. Devlin may offer further insight, and I’ll try to find out if any contact I have knows much about any consideration of criminal charges against Fanning and Parker in those days. Of course, in that case, because civil procedure was a viable remedy, that should have factored into any consideration by the DOJ. But to your point, Fanning and Parker failed up (like you can in America), became heroes and darlings of the industry, and made fortunes as a result.

  • Pingback: Enough With the Legal Theories About Piracy | Paul Marangoni's Weblog

Join the discussion.