Court Won’t Drop Case Against Alleged KickassTorrents Owner

Last summer, Polish law enforcement officers arrested Artem Vaulin, the alleged founder of KickassTorrents.

Polish authorities acted on a criminal complaint from the US Government, which accused Vaulin of criminal copyright infringement and money laundering.

While Vaulin is still awaiting the final decision in his extradition process in Poland, his US counsel tried to have the entire case thrown out with a motion to dismiss submitted to the Illinois District Court late last year.

One of the fundamental flaws of the case, according to the defense, is that torrent files themselves are not copyrighted content. In addition, they argued that any secondary copyright infringement claims would fail as these are non-existent under criminal law.

After a series of hearings and a long wait afterwards, US District Judge John Z. Lee has now issued his verdict (pdf).

In a 28-page memorandum and order, the motion to dismiss was denied on various grounds.

The court doesn’t contest that torrent files themselves are not protected content under copyright law. However, this argument ignores the fact that the files are used to download copyrighted material, the order reads.

“This argument, however, misunderstands the indictment. The indictment is not concerned with the mere downloading or distribution of torrent files,” Judge Lee writes.

“Granted, the indictment describes these files and charges Vaulin with operating a website dedicated to hosting and distributing them. But the protected content alleged to have been infringed in the indictment is a number of movies and other copyright protected media that users of Vaulin’s network purportedly downloaded and distributed..,” he adds.

In addition, the defense’s argument that secondary copyright infringement claims are non-existent under criminal law doesn’t hold either, according to the Judge’s decision.

Vaulin’s defense noted that the Government’s theory could expose other search engines, such as Google, to criminal liability. While this is theoretically possible, the court sees distinct differences and doesn’t aim to rule on all search engines in general.

“For present purposes, though, the Court need not decide whether and when a search engine operator might engage in conduct sufficient to constitute aiding and abetting criminal copyright infringement. The issue here is whether 18 U.S.C. § 2 applies to 17 U.S.C. § 506. The Court is persuaded that it does,” Judge Lee writes.

Based on these and other conclusions, the motion to dismiss was denied. This means that the case will move forward. The next step will be to see how the Polish court rules on the extradition request.

Vaulin’s lead counsel Ira Rothken is disappointed with the outcome. He stresses that while courts commonly construe indictments in a light most favorable to the government, it went too far in this case.

“Currently a person merely ‘making available’ a file on a network in California wouldn’t even be committing a civil copyright infringement under the ruling in Napster but under today’s ruling that same person doing it in Illinois could be criminally prosecuted by the United States,” Rothken informs TorrentFreak.

“If federal judges disagree on the state of the federal copyright law then people shouldn’t be criminally prosecuted absent clarification by Congress,” he adds.

The defense team is still considering the best options for appeal, and whether they want to go down that road. However, Rothken hopes that the Seventh Circuit Court of Appeals will address the issue in the future.

“We hope one day that the Seventh Circuit Court of Appeals will undo this ruling and the chilling effect it will have on internet search engines, user generated content sites, and millions of netizens globally,” Rothken notes.

For now, however, Vaulin’s legal team will likely shift its focus to preventing his extradition to the United States.

Source: TF, for the latest info on copyright, file-sharing, torrent sites and ANONYMOUS VPN services.

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