By Chris Cooke | Published on Friday 29 July 2016
Alleged KickassTorrents owner Artem Vaulin has engaged the services of Kim Dotcom’s attorney Ira Rothken because, well, why wouldn’t you?
Even if you can’t fight the charges made against you by the American authorities, perhaps you can put off your extradition until the early 2040s, by which time the US – aka Trumptonia – will be a baron wasteland where the feral beasts of men who roam what’s left of that once great nation won’t be so bothered about bringing former copyright infringers to justice.
Especially those who live in Europe, who will still be contaminated from the nuclear winter, and what judge wants a radioactive defendant in their courtroom? None, that’s what. This, ladies and gentlemen, is what you call a legal strategy. I should give up this words lark and put my law degree to proper use.
Anyway, Rothken – who has advised Dotcom in his long running legal battle with the US authorities over his former business MegaUpload – reckons that Vaulin, arrested last week, can mount a decent defence against the charges filed against him over KickassTorrents. And to that effect the lawyer is trying to have the Ukranian released from the Warsaw jail where he’s been resided since his arrest in a bid to start work on that defence.
As previously noted, there are some parallels between the MegaUpload and KAT cases, in that both are criminal actions being pursued by the US government that require the accused to be extradited to the States. And both Dotcom and Vaulin are accused of copyright crimes and money laundering.
Though there are some significant differences too, because MegaUpload was a file-transfer and video-upload site, whereas KAT was a file-sharing hub. The big difference is that MegaUpload actually hosted unlicensed music and movie files on its servers, whereas KAT simply provided links to unlicensed content elsewhere on the net. Dotcom, if his case ever gets to the US courts, will rely heavily on the always contentious safe harbours of American copyright law. Vaulin’s defence, however, would likely rely on other legal arguments.
As a string of successful lawsuits against file-sharing sites have proven, saying “but we don’t host any of the infringing files” isn’t a valid defence, because most copyright systems recognise that helping others to infringe can in itself constitute infringement – something variously called contributory, secondary or authorising infringement, depending on the jurisdiction. This was the defence unsuccessfully used in the main case against The Pirate Bay, which is probably the closest comparable case to that now involving Vaulin
The founders and funder of the Bay were found liable for contributory infringement in a combined criminal and civil case, and all spent time in prison (or under house arrest in the funder’s case) as a result. But that all happened under Swedish law. And Rothkin reckons that, while file-sharing sites can and have been held liable for contributory infringement, or similar, in civil cases in the US, there isn’t a case under the criminal law. And the KAT man is accused of criminal copyright infringement.
The lawyer told Torrentfreak: “We believe the US criminal complaint lacks merit. Torrent sites and trackers are devoid of any content files. If any infringement occurs it happens offsite and leaves KickassTorrents behind. This type of copyright theory is known as secondary copyright infringement and there is no United States criminal statute for secondary copyright infringement – that type of theory is at most a civil liability issue”.
Rothkin will work with Polish legal reps to try and get Vaulin out on bail and to then fight the US authorities’ bid to extradite the alleged KAT chief. Attempts to extradite Dotcom from New Zealand to the US are ongoing four and half years after he was first arrested, and even though the NZ courts approved the extradition late last year, the former MegaUpload boss is now appealing that ruling, while getting busy setting up MegaUpload v2.
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