Last month the legal defense team of alleged KickassTorrents (KAT) owner Artem Vaulin asked the Illinois District Court to dismiss the criminal indictment, citing various flaws.
The U.S. responded not much later, arguing that the torrent site and its alleged operators are not as harmless as the defense portrayed them to be.
According to United States Attorney Zachary Fardon, KAT’s defense is downplaying the significance of “torrent” sites, which are more akin to flea markets for infringing movies, TV shows, games, music, and software.
In addition, the U.S. pointed out that Vaulin and his co-conspirators were also involved in separate direct-download and streaming sites including rolly.com, solarmovie.com,
In a new reply brief submitted late last week (pdf), the KAT defense team notes that the Government’s reply fails to address the fatal flaws they’ve pointed out in the indictment.
“The failure of the Response to address defendant’s showing of an improper indictment tacitly admits the impropriety,” they write, highlighting that many of the accusations are not criminal in nature or lacking vital details.
For example, KAT’s legal team notes that the Government fails to list any copyrighted works that were supposedly downloaded from “direct download” sites that were listed in the indictment.
In addition, the defense highlights that streaming is not a felony in the United States, and sharing a non-copyrighted torrent file is not a crime either. By suggesting otherwise, the Government is violating its own criminal guidelines.
“The general video streaming alleged in the indictment cannot be prosecuted as a felony. There is no crime of making available a torrent file. This prosecution violates guidelines set forth in a ‘Prosecuting IP Crimes Manual’ publically posted by the Department of Justice.”
“More fatal to the indictment – there are no facts alleged that such works were uploaded, stored, or downloaded from “direct download sites,” the defense teams adds.
The Government had countered KAT’s defense that secondary copyright infringement doesn’t exist under criminal law. However, according to the defense, many of the citations used are dated.
Instead, they point out that “aiding and abetting” was removed from criminal copyright law forty years ago. As such, torrent site operators should not be held liable for the potentially infringing actions of their users.
“In another attempt to criminalize torrent sites, the Response asserts a theory of ‘aiding and abetting,’ presenting various historical citations. But aiding and abetting was removed from the Copyright Act by Congress in 1976 thereby eliminating the crime.”
These and other errors should warrant a dismissal, KAT’s defense argues. In its current form, the indictment is bound to misinform the grand jury, and they hope that the court will see it the same way.
“In sum, the attempt to hold KAT’s overseas torrent sites as accessories to unspecified copyright crimes committed in unknown ways in the United States by unknown former KAT users is unprecedented and violates multiple constitutional prohibitions.
“The indictment is so permeated with improper legal theories and insufficient predicate facts to support the elements of felony criminal claims – from improperly conflating dot torrent files into direct criminal infringement to improperly alleging video streaming as a crime that it cannot be trusted that the grand jury was properly instructed with the correct law and legal principles to render a competent decision.”
It is now up to the Illinois District Court to decide how to move forward. The defense is hoping for an outright dismissal, while the U.S. wants to move forward.
Meanwhile, over in Poland alleged KAT operator Artem Vaulin has just had his detention extended. The court declined to release the Ukrainian on bail and ruled that he should remain in custody until mid-February.