Artem Vaulin Files Reply in Support of Motion to Dismiss

On November 18th, 2016 Artem Vaulin filed a reply in support of his motion to dismiss the indictment arguing, amongst other things, that "making available" mere torrent files is insufficient to constitute criminal copyright infringement.

The full reply brief can be found here.

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Here is an excerpt from the reply brief:

I. Introduction

In his Opening Memorandum, defendant Artem Vaulin identified major defects in the Indictment in this case, including:

(a) duplicitous allegations of (1) non-criminal activity of running a torrent site with (2) unspecified crimes committed while running quite different “direct download sites;”

(b) failure to allege even a single actual criminal infringement occurring within the territory of the United States; and

(c) violations of constitutional principles of separation of powers and due process and of prudential principles of copyright law that prohibit the prosecution from inventing new crimes of “running a torrent site” or “encouraging copyright infringement.”1

The Response of the United States is to ignore Vaulin’s constitutional and prudential authorities (see Response at 6-7) and to declare that “the proper vehicle for challenging the sufficiency of the government’s evidence is a trial, not a motion to dismiss an indictment properly returned by the grand jury.” (Response at 1.) The failure of the Response to address defendant’s showing of an improper indictment tacitly admits the impropriety. For example, the failure to allege even a single copyrighted work uploaded, stored, or downloaded to/from such “direct download sites” is not a mere administrative issue it is fatal to the indictment for criminal copyright infringement. 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. 2

Sections 26(j) and (v) in the indictment discuss the approximately 11 copyrighted “works in suit” or the works alleged to be criminally infringed and it is limited to allegations of torrent files found on a torrent search engine site in 2016 – most notably not Kickasstorrents.com which was apparently off line by 2011. No actual infringers or infringements and the factual basis for felony direct infringements were alleged in the indictment. The Response fails to counter the overwhelming authorities provided in the motion to dismiss that the storage or transfer of dot torrent files is not direct infringement.

More fatal to the indictment - there are no facts alleged that such works were uploaded, stored, or downloaded from “direct download sites.”

Notwithstanding the government’s erroneous theories of criminal copyright infringement Kickasstorrents.com appeared to seize activity outside the applicable five year criminal copyright statute of limitations period cut off and the indictment appears to contain an error that cannot be reconciled with the government’s own sworn evidence.3 There is little effort to tie with sufficient alleged facts, beyond speculation, the above 2016 torrent site to Artem Vaulin rendering the entire indictment improper.

In another attempt to criminalize torrent sites, the Response asserts a theory of “aiding and abetting,” presenting various historical citations. (Response at 7-8.) But aiding andabetting was removed from the Copyright Act by Congress in 1976 thereby eliminating the crime. The only Federal Court to consider the issue, LaMacchia, supra n. 1, set forth an integrated historical review and stated that: “In 1976, Congress revamped the Copyright Act by eliminating the crime of aiding and abetting copyright infringement.” (871 F.Supp. at 539.) See also Manta, Irina D., The Puzzle of Criminal Sanctions for Intellectual Property Infringement, 24 Harv. J.L. & Tech. 469, 481 (2011) (“Several years later, countering what had been a trend of expansion in the area of criminal sanctions, the Copyright Act of 1976 eliminated the provisions for aiding and abetting . . .”).

The government argues that KAT’s operators “sought out infringing material and trumpeted that to their users, targeting the infringement minded with rewards and honors for posting torrents for copyright infringement material...the indictment sufficiently alleges that defendant entered into an agreement with others to commit copyright infringement, and aided and abetted the copyright infringement of others.” (Response at 14.) The government alleges that defendant “facilitated and promoted” copyright infringement. (Id. at 11, quoting Indictment § 1(b); see also Response at 13 (“encourage, induce, facilitate”). The Indictment and the Response thus allege an invented crime of “encouraging or inducing copyright infringement” — which is the essence of a civil claim arising out of Judge made case law, especially MGM Studios v. Grokster, 545 U.S. 913, 930 (2005) as discussed in the Opening Memorandum at 9.

The aiding and abetting theory, while not applicable due to its elimination by Congress from the Copyright Act, will be addressed arguendo below, and it does not justify invention of a new crime of “encouraging copyright infringement.” Aiding and abetting is applied to an accessory to an actual crime committed by a principal and no such actual crime is alleged in the Indictment.Apparently, under the prosecution’s aiding and abetting theory, actual perpetrators of statutory crimes are potentially scattered among the “millions of individuals in the United States” alleged in ¶ 4 of the Indictment to have had access to KAT. There is no actual perpetrator identified in the Indictment whom defendant Vaulin might have aided or abetted and no specifications of elements of actual statutory copyright crimes. There is no allegation that supports the nature of any primary infringement one is left to guess if a user left the KAT site and later, in the Bittorrent network generally, was engaged in activity that could be punishable as a misdemeanor or through civil liability or one that cannot be punishable at all such as being “extraterritorial”. Defendants cannot commit a felony, as articulated in the indictment, by conspiring or aiding and abetting a KAT user to commit no infringement or an extraterritorial infringement, misdemeanor infringement, or civil infringement. An investigator downloading a torrent file and then leaving the site behind to create in the Bittorrent Network a content file does not pass muster for a felony. See London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 166 D. Mass. 2008 (stating that copyright holder’s investigator’s “own downloads are not themselves copyright infringements because it is acting as an agent of the copyright holder, and copyright holders cannot infringe their own rights”).

This Court should decline the government’s invitation by implication to find that the general Bittorrent ecosystem and “network” and unknown users are copyright felons under US law or that Bittorrent technology and the network are not protected by the Sony doctrine where they are a dual use technology capable of substantial non infringing uses.

Indeed, beyond the failure to raise a proper direct infringement, conspiracy, and aiding and abetting theory of copyright infringement, the failure to allege facts to support that the direct infringements occurred in the United States is also fatal to all the counts. The Court in Subafilmsarticulated the limited reach of US jurisdiction arising from the Copyright Act:

“Even assuming arguendo that the acts authorized in this case would have been illegal abroad, we do not believe the distinction offered by Appellees is a relevant one. Because the copyright laws do not apply extraterritorially, each of the rights conferred under the five section 106 categories must be read as extending "no farther than the [United States'] borders." 2 Goldstein, supra, § 16.0, at 675. See, e.g., Robert Stigwood,530 F.2d at 1101 (holding that no damages could be obtained under the Copyright Act for public performances in Canada when preliminary steps were taken within the United States and stating that "[t]he Canadian performances, while they may have been torts in Canada, were not torts here"); see also Filmvideo Releasing Corp. v. Hastings, 668 F.2d 91, 93 (2d Cir.1981) (reversing an order of the district court that required the defendant to surrender prints of a film because the prints could be used to further conduct abroad that was not proscribed by United States copyright laws).”

The indictment not only fails to alleged sufficient facts to support direct infringement occurring in the United States but fails to allege sufficient facts to support that the mere torrent files for the “works in suit” or “works in the indictment” came from servers in the United States or servers tied to Artem Vaulin. The government cannot equate having a US domain name or US email server to having servers in the United States for the dot torrent files at issue. In addition, the torrent files allegedly related to the “works in the indictment” were apparently obtained in 2016 from foreign servers.

The indictment, distilled to its essence, is based on 11 torrent files downloaded from a foreign server in 2016 with a speculative relationship to Artem Vaulin based on someone’s use of the name “kickasstorrents” in relation to the site.

Defendant is charged only with “making available” and “enabling,” not with actualinfringements. (Response at 15-16.) The government cannot conflate KAT’s automated “making available” a torrent file with a speculative subsequent knowing and willful direct copyright infringement offense against the United States.

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. Given the problems with the indictment the Court ought to provide extra scrutiny and less deference.

The government initially argues that, in an exercise of discretion, the Court should delay ruling on the motion until defendant personally appears. Defendant has been arrested and incarcerated for a non-existent crime of “making available” 11 torrent files. The government seeks to shield its wrongful inventions of new crimes from judicial scrutiny for a protracted period by charging overseas defendants and by invoking the fugitive disentitlement doctrine. That doctrine is based on inherent powers of the court; such powers should not be subverted for the abusive purposes of this prosecution.

Therefore, the Motion to Dismiss should be granted at the earliest opportunity.

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