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US court formally hears Kickass arguments

By | Published on Friday 3 February 2017

Kickass Torrents

There were few surprises when legal reps for alleged KickassTorrents owner Artem Vaulin and the US prosecutors targeting the file-sharing site clashed in an American court earlier this week. Both sides stuck to past arguments over the criminal liability, or not, of the former Kickasser-in-Chief in relation to the rampant copyright infringement his website facilitated.

As previously reported, key file-sharing platform KAT came crashing down last July after Vaulin was arrested in Poland at the request of the American government. Extradition proceedings were subsequently launched and are ongoing in Poland, where Vaulin remains behind bars. Meanwhile, back online, a number of KAT clones emerged over the summer and then, in December, a group of people seemingly involved in the original Kickass site launched a new version of the torrent platform.

In the US, Vaulin is being repped by the same lawyer as MegaUpload’s Kim Dotcom, Ira Rothken. He points out that – like most file-sharing services – KAT never actually hosted any copyright infringing material itself. Rothken then argues that, while there may still be a case for so called secondary or contributory infringement against the KAT man for his role as a facilitator of other people’s infringing activities, American law doesn’t allow for criminal secondary infringement.

Repeating those arguments as a court in Illinois considered the case this week, Rothken told Torrentfreak: “We believe that the indictment against Artem Vaulin in the KAT torrent files case is defective and should be dismissed. Torrent files are not content files. The reproduction and distribution of torrent files are not a crime. If a third party uses torrent files to infringe it is after they leave the KAT site behind and such conduct is too random, inconsistent, and attenuated to impose criminal liability on Mr Vaulin”.

Noting the landmark court case that confirmed the potential civil liability under American law of companies which provide file-sharing tools that primarily help others to infringe copyright, Rothken said: “The government cannot use the civil judge-made law in Grokster as a theory in a criminal case”.

As is common when people defend file-sharing platforms like The Pirate Bay and Kickass, Vaulin’s defence argue that his site was basically just a search engine and in that respect is no different to Google. If KAT is liable, so is Google, goes that logic.

The music industry, of course, does not concur. In countless civil cases, distinctions have been made between services specifically designed to facilitate the distribution of unlicensed content online and similar technologies or platforms that may inadvertently do the same thing, but which have other primary purposes.

Meanwhile, when the founders of The Pirate Bay were prosecuted in Sweden, not only was that distinction made, but contributory infringement on a massive scale was considered a criminal offence. But that wasn’t under American law.

In the KAT case, US prosecutors are basically trying to portray Vaulin’s defence as a technicality-fest designed to excuse a criminal racket. US Attorney Zachary Fardon previously wrote in a court submission: “For the defendant to claim immunity from prosecution because he earned money by directing users to download infringing content from other users is much like a drug broker claiming immunity because he never touched the drugs”.

Meanwhile in court this week, according to Law 360, prosecutor Devlin Su honed in on the comparisons to other search engines, saying: “Google is not dedicated to uploading and distributing copyrighted works”.

The Department Of Justice man urged the US court to await the outcome of the extradition hearing in Poland before ruling on Rothken’s bid to have the American case against his client dismissed.