This case arises out of an erroneous theory of criminal copyright law that attempts to hold defendant Artem Vaulin criminally liable for the alleged infringing acts of the users of KickAss Torrents and the other torrent websites alleged in the indictment to be under Vaulin’s control (collectively referred to as “KAT”).

Indeed,this case involves an untested theory of first impression for purported criminal copyright liability.

Websites like KAT are devoid of content files. Instead, KAT is nothing more than a search engine, no different in any material way from Google and other popular website search engines, except that KAT indexes BitTorrent files. Computerized operations at torrent sites acquire, store and distribute uncopyrighted “torrent files” or “torrents.” A torrent file “contain[s] instructions for identifying the Internet addresses of other BitTorrent users.” (Indictment at ¶ 1(a)).

Thus, at its core, the indictment merely alleges that visitors to KAT may take advantage of KAT’s automated search processes to search for and locate “dot torrent” files. Such files contain textual information assembled by automated processes and do not contain copyrighted content. After the visitor leaves the KAT website the visitor may stop and do nothing. Or, after leaving the KAT site, the visitor may choose to use the data in the torrent files identified in a search. However, such use depends on the visitor acquiring and using “thin client” BitTorrent software that users independently download and install on their own computers. Using such third-party software, the visitor may use BitTorrent files that work like links to download materials such as content files, but only if such materials are at that very moment actively being hosted and constructed by other BitTorrent users located elsewhere on the Internet. 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. Therefore, given the lack of direct willful copyright infringement, torrent sites do not violate criminal copyright laws.

The indictment attempts hold the purported operator of a torrent search site that is devoid of content files, criminally responsible for the acts of users who go elsewhere to allegedly infringe on copyrighted materials. Under civil copyright law, a person who does not directly use or distribute copyrighted materials, but aids other’s in doing so, may be held contributorily liable for infringement. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, 545 U.S. 913, 930 (2005). This is known as “secondary” infringement. However, “secondary copyright liability” of persons who encourage or induce infringing activities of third parties (Indictment at ¶ 3) is only a common-law civil theory of liability that cannot be criminally prosecuted absent an express act of Congress. Congress, however, has declined to enact such legislation. Therefore, one cannot criminally conspire to violate a civil common-law copyright prohibition under Grokster and its progeny as it is not an offense against the United States.

Moreover, the indictment also fails to specifically allege that any copyrighted media was downloaded or otherwise infringed within the territory of the United States. This too is critical because the U.S. copyright laws do not protect against extra-territorial infringement. Nonetheless, the indictment merely – and insufficiently – alleges that conduct at issue made copyrighted content “available” to “millions of individuals in the United States.” (Id. at ¶4). Merely “making” copyrighted materials “available” in the United States does not establish actual necessary infringements in the United States.