Expert analysis provided by UpCounsel privacy attorney Meaghan Zore.
Earlier this summer, a website called KickassTorrents (KAT) was unceremoniously seized and shuttered by the U.S. government, and its alleged founder and owner was arrested in Poland by local authorities and charged with a handful of crimes, including criminal copyright infringement and money laundering.
If this – or the very existence of the site itself – comes as news to you, you’re far from alone. Nor would you be in exclusive company if the news above had you thinking something like, “wait, torrenting is still a thing?” For many, the word “torrenting” itself may sound like a relic of the early 2000s or elicit thoughts of LimeWire.
After all, according to TorrentFreak, 10 years ago, BitTorrent was responsible for a whopping 35 percent of all Internet traffic. But the truth is that torrenting, while its overall share of Internet traffic has dropped, torrent traffic “is now responsible for 29 percent of all U.S. internet traffic during peak hours, up from 25 percent last year, according to a study by Sandvine.
Thanks to competition from legal entertainment services like Netflix and Amazon, et al, BitTorrent’s overall share of Internet traffic has dropped to just 4.4 percent, but overall, torrenting remains more popular than one might have assumed. Yet, even with increased effort from U.S. and international authorities to crack down on illegal file sharing, sites like KickassTorrents continue to thrive.
You don’t have to go back very far to find other similar, high-profile analogues. In 2012, New Zealand authorities famously raided the home of Kim Dotcom, the founder of the file-hosting giant, MegaUpload. Authorities seized many of his assets, and shuttered the website. In 2014 and 2015, Swedish authorities shut down many domains associated with the popular torrent-sharing service.
Torrent traffic is responsible for 29% of all U.S. internet traffic during peak hours.
There are a host of other similar examples, yet in each of these cases, as with others, the websites or services continue to operate in some form or another, hopping from domain to domain to evade authorities.
But why should you care? While KickassTorrents may not have been on your radar screen, like MegaUpload, The Pirate Bay and many others, it was not only highly-trafficked, it was a (surprisingly) big business.
According to the criminal complaint filed by the Department of Justice in July, KickassTorrents attracted more than 50 million unique visitors per month, making it “the 69th most frequently visited website on the entire Internet.” That would’ve put it ahead of Craigslist, PayPal and many other sites.
Not only that, but KickassTorrents was reportedly raking in tens of millions in advertising dollars every year, and according to the DOJ, helped to distribute “well over $1 billion in copyrighted materials.” Assistant Attorney General Leslie Caldwell said in the DOJ’s statement that the KickassTorrents founder was “charged with running today’s most visited illegal file-sharing website, responsible for unlawfully distributing well over $1 billion of copyrighted materials.”
“In an effort to evade law enforcement,” the statement continued, “Vaulin allegedly relied on servers located in countries around the world and moved his domains due to repeated seizures and civil lawsuits. His arrest in Poland, however, demonstrates again that cybercriminals can run, but they cannot hide, from justice.”
KickassTorrents attracted 50M+ unique visitors monthly, more than Craigslist and PayPal.
There’s no doubt that the years-long process of catching the site’s founder included some impressive work by authorities – or a dumb slip-up by Vaulin himself, depending on who you ask. Whether it be thriller or comedy, either way, the hunt and eventual capture of Vaulin reads like something out of a Hollywood script.
There’s also little doubt that the service’s alleged founder and owner, Artem Vaulin, is in for a long and uncomfortable battle. The 30-year-old Ukranian was arrested in Poland, where he now awaits extradition to the U.S. The U.S. government has charged Vaulin not only with conspiracy to commit copyright infringement and conspiracy to commit money laundering, but also with two counts of criminal copyright infringement. If convicted of all four counts, Vaulin could face a maximum sentence of up to 35 years in prison – 10 years for two counts of criminal copyright infringement, five years for conspiracy to commit copyright infringement and 20 years for money laundering.
Ultimately, however, it seems like there may be more at stake with this case than the fate of KickassTorrents founder. “The case could have sweeping repercussions on how torrents are regulated,” Brian Barrett recently wrote in Wired. Not only that, but the case could have a big impact on the role and application of criminal copyright laws.
The KAT case could have a big impact on the role and application of criminal copyright laws.
“There’s no doubt that this has the tell-tale signs of a test criminal case,” Ira Rothken told Wired. Rothken happens to be the same man who helped MegaUpload Founder Kim Dotcom fight the charges brought against him and has managed to keep his client out of custody. Rothken recently announced that he would be representing Vaulin in his upcoming legal battles.
In fact, Rothken believes that Vaulin has plenty of reasons to remain optimistic about the case and doesn’t think his new client will be seen inside an American courtroom anytime in the near future.
“If the defense prevails,” Rothken continued, “then the Department of Justice can point to this scenario to tell Congress there may be a need to update the criminal copyright laws.”
The experienced technology litigator explained to Ars Technica that there are several noteworthy similarities between the case brought against Kim Doctom and the one now being brought against Vaulin. However, the case against KAT may, in fact, be weaker, because, unlike MegaUpload, KAT operates on the same peer-to-peer system as BitTorrent, and, as a result, doesn’t actually host any files or content.
Rather than being analogous to MegaUpload, Rothken compares it instead to a service like Google. “[KickassTorrents] is a glorified set of hyperlinks,” he told Ars Technica, “very much like you would get from a search engine…”
The Communications Decency Act may protect KickassTorrents.
In other words, instead of actually storing the files, KickassTorrents simply links searchers and downloaders to files uploaded on or hosted by other sites. In fact, Rothken believes that the case should be a civil, not criminal, one. Barrett points out that the case against The Pirate Bay in Sweden was both a criminal and a civil trial.
“We’re not able to find any cases, especially criminal cases, where a hyperlink was considered direct, willful [copyright] infringement,” Rothken explains. “The U.S. is involved in experimental criminal litigation, and it’s designed to have a chilling effect on people using BitTorrent technology. If one were to go out and spider all the BitTorrent files they could find online … the same allegations could be made against that search engine, and we believe that’s improper use of the prosecutorial power. We believe this case will ultimately be dismissed.”
UpCounsel privacy attorney Meaghan Zore agrees, saying that she believes the case against Vaulin is an “overreach for direct copyright infringement,” and while it could be more closely in line with “contributory infringement,” it may be difficult to establish infringement at all.
Zore says that KickassTorrents could be protected under Section 230 of the Communications Decency Act, as long as Vaulin and the site’s curators abided by the safe harbor provisions of the Digital Millennium Copyright Act (DCMA) and “abided by the appropriate take down procedures.”
To that end, Vaulin’s defense team sent a letter to the DOJ last month, requesting that all charges be dropped and that the KickassTorrents founder be released from prison. The team argues that Vaulin should not be held responsible for the actions of the site’s users, and that the site itself never hosted any of the illicit materials or content. Instead, any copyright infringement or illegal activity took place once the user left the site.
Vaulin’s team argues that he should not be held responsible for the actions of the site’s users.
“This alleged criminal copyright case arises out of an erroneous theory of criminal copyright law advanced by the United States that attempts to hold Artem Vaulin criminally liable for the alleged infringing acts of KAT’s search engine users … Defendants cannot be held criminally responsible for what users do after they leave the KAT search engine behind. The Copyright Act does not criminalize secondary copyright infringement.”
Nonetheless, reports surfaced this week that the DOJ is continuing with extradition proceedings, and officially requested Vaulin’s extradition in September. Whether the request and arguments of Vaulin’s defense team will hold any sway and slow down the proceedings remains to be seen.
But, what we do know is that, like the case against Kim Dotcom before it, all signs seem to point to the fact that the case against Vaulin will have significant consequences. If the KickassTorrents founder prevails, then it could be a big victory for similar peer-to-peer file-sharing services, and if he’s not so lucky, then the U.S. will have established “a legal precedent to bring criminal charges against torrent operators.”
So, while the feds have viewed past arrests of torrent operators as victories for justice, as the DOJ wrote in its statement, in retrospect, the seizures and closures have just been hiccups for file-sharing sites like KAT. But this time, it may actually mean something. Win or lose, the fate of torrenting could be at stake.
What do you think?
About UpCounsel Privacy Attorney Meaghan Zore
Meaghan previously served as in-house counsel at Google and is a certified information privacy professional (CIPP/US). She helps businesses minimize risk and engender consumer trust by keeping them in compliance with the ever-changing, complex patchwork of data protection laws, regulations, rulings and standards. Meaghan assists clients with technology policy strategy, analysis and advocacy and human rights matters.
“Meaghan took the time to deeply understand my product, my operations and my business goals before doing any work for me. I’m very happy with the result, I will hire Meaghan again.”