Judge: KickassTorrents Founder Properly Charged With Criminal Copyright Conspiracy

Artem Vaulin, awaiting extradition from Poland, can't convince the judge he's being charged with something — secondary copyright infringement — that's not a crime.

For years, there's been ample debate and scholarly literature over whether there really exists a crime for secondary copyright infringement. On Friday, a federal judge in Illinois probably made the day of big copyright holders by ruling that the U.S. Government has properly indicted Artem Vaulin, the alleged founder of KickassTorrents.

Vaulin is currently in a jail cell in Poland after the 31-year-old was charged last year by U.S. authorities with running one of the world's most popular places to illegally obtain movies, television shows, songs and video games. After being arrested, he retained some of the same attorneys representing Megaupload's Kim Dotcom to fight the case.

Dotcom, who is still in New Zealand in a lengthy battle over whether he can be extradited, never prevailed upon a Virginia judge to rule on the argument that secondary copyright infringement is merely a civil claim. That's because he's been deemed to be a fugitive. The judge wants him to surrender first.

In Illinois, presiding over Vaulin's case, U.S. District Court judge John Z. Lee could have done the same thing. Indeed, in today's decision, he concludes that Vaulin can't move to dismiss under the fugitive disentitlement doctrine.

"As long as Vaulin is in Poland, he is not within the Court’s reach," writes Lee. "And, as far as the Court is aware, he is actively resisting extradition efforts. His attorneys represented at the most recent status hearing that there is a 'real possibility' that he will agree to appear here, but also indicated that he is actively appealing the Polish courts’ decision to extradite him, a process which could take years. Thus, insofar as Vaulin is interested in participating here, he appears willing to do so only from a safe distance."

If that was the end of the decision, it would be notable, but what makes the decision momentous is the fact that the judge decides that he will nevertheless address Vaulin's points about the crime he is charged with perpetrating.

As a foreigner running a foreign operation, Vaulin's attorneys attacked the sufficiency of the allegations of criminal activity within the United States.

"Vaulin is correct that, as a general matter, the Copyright Act does not apply extraterritorially to reach acts of infringement that occur entirely abroad," writes the judge. "But the core theory underlying the indictment is that Vaulin aided, abetted, and conspired with users of his network to commit criminal copyright infringement in the United States... When viewed in a light most favorable to the Government, as the Court must do at this preliminary stage, the indictment alleges acts of domestic infringement."

Judge Lee also points out that the indictment accuses him of "mak[ing] available and caus[ing] others to make available without authorization vast amounts of copyrighted content on KAT to millions of individuals in the United States by collecting and uploading torrent files," and that his torrent site used a "network of computer servers from around the world, including computer servers located in Chicago, Illinois."

That's sufficient, he concludes.

Lee next rejects the contention that there can be no criminal liability attached to torrent files because these files are not protected content. The judge says that misunderstands the indictment because what's at issue is the movies and other copyrighted media that users of KickassTorrents are distributing. The judge also places emphasis on how the government is charging Vaulin and others with conspiring to commit acts of infringement.

"Thus, the indictment is fairly construed as alleging an agreement between Vaulin and KAT’s users to download and distribute infringed copyrighted content by using torrent files," states the opinion. "Finally, in addition to alleging a conspiracy to commit copyright infringement based on conduct related to torrent files, the indictment also alleges a conspiracy based on Vaulin and his co-defendants’ distribution of copyrighted content through direct download websites.Thus, the conspiracy alleged in the indictment goes far beyond merely uploading and distributing torrent files, and Vaulin’s motion to dismiss the indictment on this basis is denied."

The judge's opinion doesn't stop there.

Lee takes up the issue of whether secondary liability for copyright infringement can be extended from the civil realm to the criminal one. The judge says that Vaulin is basically missing the big picture.

"[A]s should be clear by now, the indictment does not charge Vaulin with common law secondary liability... Rather, the indictment relies on the text of the congressionally enacted conspiracy and aiding and abetting statutes... Thus, the indictment charges Vaulin not with crimes based upon common law theories, but for conduct made unlawful under unambiguous statutes."

Vaulin argued that the old copyright law in 1909 had specific language criminalizing aiding and abetting copyright infringement, and that when the language was removed when the current Copyright Act was enacted in 1976, lawmakers had made a purposeful move against criminal liability for aiding and abetting infringement.

"This argument, however, misses the mark," responds Lee. "When Congress amended the Copyright Act in 1976, 18 U.S.C. § 2—which, by its terms, applies to every criminal offense—was in force. For this reason, there was no need to include language within the Copyright Act itself that criminalized aiding and abetting criminal infringement. Doing so would have been redundant."

But what about Google, Vaulin's lawyers ask. Couldn't search engines be exposed to criminal liability because they link to torrent sites too?

Lee makes two observations.

"First, as the Government noted at oral argument, 'Google doesn’t solicit and reward others for uploading torrent files for copyrighted media,' as Vaulin is charged with doing in this case," he writes. "And, if Google were to engage in such conduct, at least one court has suggested that Google might be civilly liable for contributory infringement under certain circumstances. See Perfect 10, Inc. v. Amazon.com, Inc. 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."