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Kickass lawyers diss US government’s defence of its criminal case

By | Published on Tuesday 22 November 2016

Kickass Torrents

Lawyers for the alleged owner of KickassTorrents, Artem Vaulin, have hit out at a recent submission by the US government defending its criminal action against the operator of the former file-sharing hub.

As previously reported, Ukrainian Vaulin was arrested in Poland earlier this year at the request of the American government as officials took the KAT website offline. But lawyers repping the KAT man argue that – because the Kickass site merely linked to copyright infringing material, rather than hosting it – Vaulin could only be liable for secondary or contributory infringement, which isn’t covered by the criminal law in the US.

Not so, said United States Attorney Zachary Fardon, who wrote in a recent 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”.

Fardon reckoned that when it comes to the charge of “conspiracy to commit copyright infringement”, American law doesn’t distinguish between primary and secondary infringement. He also linked Vaulin to three separate websites that were more overtly involved in the downloading or streaming of unlicensed content.

However, in their written response, the KAT man’s lawyers reckon that Fardon failed to address “major defects in the indictment” previously raised by the defence. They dispute the Attorney’s interpretation of US law, argue that some of the precedents he cited have been superseded, and claim that the American government is violating guidelines for prosecuting intellectual property crimes published by its own Department Of Justice. They also point out that Fardon didn’t provide any tangible evidence of specific copyright works that had been downloaded via the other sites Vaulin is linked to.

Concluding, the KAT defence team write: “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”.

They go on: “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”.

Vaulin’s lawyers are attempting to have the entire case against their client dismissed in the US courts before extradition proceedings back in Poland even get properly under way. In Poland, Vaulin remains in jail, with a court there recently ruling that he should remain in custody until at least mid-February, according to Torrentfreak.