ira rothken – Techdirt (original) (raw)

Guy Arrested Over KickassTorrents Blocked From Talking To His US Attorney

from the due-process? dept

Just a few weeks ago, we had lawyer Ira Rothken on our podcast (it’s a really great episode, so check it out if you haven’t heard it yet). Rothken has been involved in lots of big copyright cases, but is probably most well-known these days as Kim Dotcom’s US lawyer. In that episode we talked a lot about the Kim Dotcom situation, but also spent a fair amount of time on the case of Artem Vaulin, who was arrested in Poland for running the search engine KickassTorrents. The US is seeking to extradite him to stand trial in Illinois. On the podcast, Rothken expressed some concerns that he hadn’t been able to speak directly to Vaulin and noted that he was working on it.

Nearly a month has passed, and it appears that officials are still blocking Vaulin from communicating with Rothken. TorrentFreak has the story:

Even though nearly two months have passed, the alleged KickassTorrents owner still hasn?t been allowed to meet with his U.S. defense team. A clear due process violation, according to Rothken.

?We still have not had an opportunity, nor have we been granted access, to meet with Artem Vaulin in prison in Poland. So we now believe that this has ripened into an international due process problem.

?We believe that Artem?s rights are now being impacted with his inability to communicate with U.S. counsel,? Rothken tells TF.

Vaulin is allowed to meet with his Polish lawyer, but since the charges against him are in the US, under US law, and the key issue involves extradition to the US, it’s ridiculous that he’s unable to consult with a US lawyer.

?There?s no way that there could be a fair trial in the United States, or a fair extradition process, without Artem being able to have access to U.S. counsel, to learn his rights, to be able to galvanize the evidence, and to do so in a robust and expedient manner,?

It seems quite bizarre that Vaulin is being denied access to his lawyer. Once again, as with the Dotcom case, it feels like a situation where officials are purposely stacking the deck against the person they’re accusing, doing everything possible to make sure that they’re pressured into cutting a deal, rather than actually being able to fight for their rights.

Filed Under: artem vaulin, copyright, due process, ira rothken, poland
Companies: kickass torrents

New Zealand Court Grants Kim Dotcom's Request To Have Extradition Hearing Livestreamed On YouTube, Despite DOJ Protests

from the sorry-doj dept

The Kim Dotcom extradition appeal is now under way, with the first question being whether or not the courtroom drama could be livestreamed on the internet for a global public to watch. The request was originally made by Kim Dotcom and his lawyers, but the lawyers for the US government opposed… because… well, just because.

“US defends mass surveillance programs with ‘If you have nothing to hide, you have nothing to fear’ but opposes live streaming of my hearing,” Dotcom, who attended some of the hearing, said on Twitter.

Honestly, it’s not at all clear why the government lawyers are opposing this other than to just oppose stuff and be generally obstructionist. However, it doesn’t appear to have worked. A little while ago, Dotcom’s lawyer Ira Rothken announced that the court had agreed to allow live streaming:

The Court granted Livestreaming today in the @KimDotcom case this is a victory for transparent justice in NZ – on YouTube soon live

— Ira Rothken (@rothken) August 29, 2016

And Kim Dotcom himself tweeted that it would begin tomorrow, once a cameraman was set up:

Live stream will start tomorrow. The cameraman needs to set this up professionally and implement the Judges live streaming rules. #winning

— Kim Dotcom (@KimDotcom) August 29, 2016

This should be an interesting hearing to watch no matter what. If you want a preview of some of the points, check out our podcast interview with Dotcom’s lawyer, Ira Rothken from last week.

Filed Under: extradition, hearing, ira rothken, kim dotcom, live stream, livestream, new zealand

Techdirt Podcast Episode 87: An Interview With Kim Dotcom's Lawyer

from the from-the-front-lines dept

Ira Rothken is a lawyer on the front lines of many major legal battles relating to copyright and piracy, including defending Megaupload founder Kim Dotcom and, most recently, taking up the defense of Kickass Torrents operator Artem Vaulin. This week, Ira joins us on the podcast to discuss the ins and outs of these and other cases where the entertainment industry has come down hard on consumers and innovators.

Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

Filed Under: artem vaulin, copyright, ira rothken, kickass torrents, kim dotcom, megaupload, podcast

Kickass Torrents Asks Justice Department To Drop Case

from the i'm-sure-the-doj-will-laugh dept

Last month, we looked at the criminal complaint against the alleged operator of the torrent search engine Kickass Torrents (KAT) and raised a number of questions about the complaint. We noted that it appeared that the alleged operator, Arten Vaulin, was getting the “Megaupload treatment,” as there were a number of similarities between the two cases and the legal leaps of logic employed by the Justice Department in making their case. Thus, it was little surprise that Ira Rothken, who has managed the legal efforts for Kim Dotcom/Megaupload, has now signed on to represent Vaulin as well. His first move, last week, was to send the DOJ a letter, asking it to drop the case. While I would imagine that the request resulted in some hearty laughter among DOJ lawyers, it does lay out some of the key arguments that Vaulin will likely make as the case moves forward.

The key issue — as we pointed out in our post — and which is also true of the Dotcom/Megaupload case — is that the DOJ appears to be making up a secondary liability for criminal infringement claim, which does not exist in the law.

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 (“Defendant”) criminally liable for the alleged infringing acts of KAT’s search engine users. Discussion of Mr. Vaulin?s involvement in KAT shall await another day. Distilled down, in terms of technology, nothing more is alleged in the CC than that a visitor to defendants’ alleged “KickAssTorrents” (“KAT”) site can take advantage of automated search processes embodied there to search for and locate “dot torrent” files. Such files contain textual information assembled by automated processes and do NOT contain copyrighted content. After leaving the defendants’ alleged websites, the visitor may stop and do nothing or use the data in such torrent files in conjunction with third party “client” software; and that pursuit may, according to the desires of the user and the uncertain nature of the availability of third party files on the internet, lead to both infringing and non-infringing files being constructed that are located elsewhere on the Internet. By the time any possible primary infringement by a former KAT visitor could ever occur the visit to the site is long over.

The indictment does not even come close to alleging direct “willful” copyright infringement as KAT contains and transmits no content files. 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…. The Criminal statute at issue namely Section 506 only imposes liability for direct, willful infringement that causes specific damages…. The government?s copyright conspiracy theory for similar reasons fails as a matter of law. Such a conspiracy theory is little more than a novel back door attempt to improperly argue judge made civil secondary infringement in a criminal case. Trying to hold KAT criminally responsible for the entire global BitTorrent network does not pass muster.

Later, the letter points out how the failure of the complaint to point to any actual direct infringement shows just how weak the case is:

The absence of allegations of specific unauthorized downloads or direct infringements in the complaint is not inadvertent: rather it is a side effect of how far removed defendant is from the potential infringing event and it is part of an improper criminal complaint that purports to impose presumptive criminal liability on a BitTorrent search engine for alleged offsite infringements. It is also a sign that the government is eager to improperly introduce concepts of judge made civil law into a criminal statutory analysis.

The letter also notes that the Homeland Security Investigations agent who wrote the affidavit attached to the criminal complaint clearly did not understand how bittorrent works and completely misrepresented the technology in a way that unfairly represents how KAT and bittorrent actually work. For example:

Paragraph 19 of the Affidavit inaccurately states: ?Between on or about June 24, 2016, and on or about June 30, 2016, HSI Special Agents downloaded from the Northern District of Illinois the following prerelease movies from KAT (at Subject Domain 4).? There was no movie or other content on KAT that could ever be downloaded and therefore no direct infringements could have occurred on KAT…. Infringements that occur after users, including HSI Special Agents, leave the KAT site behind cannot be criminally actionable against KAT.

The case by the DOJ also relies very heavily on the fact that the HSI investigator was able to find a torrent for a pre-release copy of Captain America: Civil War via a KAT search. The case needs this, because it’s the only way it gets even remotely close to criminal copyright infringement (remember, there’s a big difference between criminal and civil copyright infringement, and individuals downloading/uploading stuff won’t cut it (especially if there’s no money in it). The complaint tries to get around this by focusing (almost exclusively) on the Captain America pre-release, because there is criminal infringement for pre-release works. But, again, Rothken points out the problems with this argument:

The only copyrighted work identified in Counts Three and Four is ?Captain America: Civil War,? referenced in paragraph 19, discussed supra. There is no evidence to support the allegations as ?Captain America: Civil War? or as to any specific work. The lack of evidence is not surprising given that the KAT technology did not store or transmit any content. If a user committed copyright infringement, it is only after they left the KAT servers behind.

It is settled that liability for direct copyright infringement cannot be based on provision of information services to individuals that such individuals use to commit infringement. More specifically it is also well settled law that mere hyperlinks and their more attenuated cousin, torrent files, cannot constitute direct copyright infringement. In brief, because KAT did not copy anything or transmit content, it cannot be charged with direct copyright infringement.

It also challenges the weird DOJ argument that KAT failed to comply with the DMCA notices it sent. As the letter points out, that’s not a criminal offense.

Alleged failures to comply with the conditions of a DMCA civil defense does not create a criminal cause of action. There is no Act of Congress establishing a crime for violations of the DMCA safe harbors. The DMCA is a defense in the civil context of contributory and vicarious liability for copyright infringement committed by third parties and of liability for intentionally inducing third parties to commit copyright infringement.

The Government knowing that Judge made civil law for internet secondary copyright infringement could not be applied in the criminal statutory context is attempting to use the vague and novel theory of criminal ?conspiracy? to try to argue it through a back door and such arguments fail as a matter of law. There is a scarcity of judicial opinions in contested criminal copyright cases that discuss how a criminal conspiracy theory could apply to mere internet hyperlinks or torrent files/trackers. The government by throwing against the wall the criminal conspiracy theory without any statutory support from Congress is trying to argue Judge made civil common law by analogy. Common-law civil liability principles cannot be extended to impose criminal liability. Crimes must be specifically defined by Congress. Federal crimes ?are solely creatures of statute.?

There are a few other points made in there, including laughing off the “conspiracy” claims, since the DOJ only named one person and can’t legitimately argue a “conspiracy” between KAT’s operator and its users. There are also jurisdictional questions about trying the case in Illinois (or under US law at all) and of course, the silliness of including a money laundering claim.

There’s basically zero chance that this leads to the DOJ dropping the case, but I imagine that much of this letter (perhaps verbatim) will show up in court before long…

Filed Under: artem vaulin, copyright, criminal copyright, doj, ira rothken, kim dotcom
Companies: kickass torrents

Kim Dotcom's Lawyer Says DOJ 'Blessed' Destruction Of Evidence In Megaupload Case

from the that-can't-be-good dept

Last week we wrote about the reports from Kim Dotcom that the main European hosting provider that Megaupload had used, Leaseweb, had deleted all of the data on the over 600 servers Megaupload had leased from the company with no warning. That’s kicked off something of a he said / she said between the two sides concerning what communications and business offers were made, and on the timing of everything. It does seem clear that both Dotcom’s lawyer and the EFF sent Leaseweb a notice to preserve the data, as it was a part of an ongoing criminal case. Leaseweb argues that it replied to these concerns and that it had no legal obligation to keep the data, but did so anyway for many months, before reprovisioning the servers. It also claims it gave Megaupload notice of these plans.

There’s some suggestion that Dotcom may sue Leaseweb over all of this, but a much more interesting point is made all the way at the end of Ars Technica’s coverage of the story, in which Dotcom’s lawyer, Ira Rothken, is quoted about the DOJ’s role in all of this:

“We learned that the [United States Department of Justice] blessed the LeaseWeb data destruction and we will raise these issues at the appropriate time with the Federal Court in the US.”

Of course, that’s the big issue here. If the DOJ blessed the destruction of evidence in a criminal case, that’s going to look very, very bad for the DOJ, and make it a lot more difficult for them to have this case succeed. Of course, as we’ve discussed, almost from the very beginning, it has appeared that the DOJ wanted evidence destroyed in this case (that’s from less than two weeks after the evidence was seized). It seems fairly incredible that this has remained the DOJ’s position, since it seems like an issue that is almost certain to be raised in court. If the DOJ is so confident in their case, why would it support the destruction of evidence?

Filed Under: destruction of evidence, doj, evidence, ira rothken, kim dotcom
Companies: leaseweb, megaupload

Kim Dotcom Files Brief In His Trial In The Court Of Public Opinion

from the laying-out-the-arguments dept

A bunch of folks have been pointing us to the new “whitepaper” released by Kim Dotcom, which lays out two key things: why the lawsuit against him is a complete legal sham and also why it was driven by a corrupt connection between the US government and the MPAA. The paper is written by his lawyers, including Ira Rothken and Richard Amsterdam (whose addition to his legal team was discussed a few months ago). Frankly, most of this reads like the lawyers refining the eventual motion-to-dismiss filing that they expect to submit to the federal court (should it ever get there). The majority of it is taken up with the clear legal statements as to why the lawsuit is based on very questionable theories. The main point, as we’ve discussed before in the context of other cases, is that the DOJ seems to have completely made up a legal theory of contributory copyright inducement. While there is such a thing in civil contexts, it’s not there in criminal contexts. Supporters of the DOJ will argue that there is aiding and abetting, but the rules there are quite different and, again, it doesn’t look like Dotcom and crew would be guilty of such a charge.

The overall point is clearly stated in the whitepaper. Here’s a snippet:

The fact of the matter is that the notion of criminal liability for secondary copyright infringement does not exist in U.S. law. The attempt by prosecutors to expand criminal liability for secondary infringement by couching it as “aiding and abetting” or “conspiracy” goes against established precedent in case law and repeated positions taken by the U.S. Congress.

The Copyright Act creates civil and criminal liability for various acts of copyright infringement, but it does not expressly give rise to liability for infringement committed by third parties. Furthermore, the U.S. Supreme Court has defined specific circumstances under which service providers may be held civilly liable (i.e., not criminally responsible) for direct copyright infringement by third parties, such as distributing “a device with the object of promoting its use to infringe copyright.”

The fundamental legal problem with this aspect of the government’s case is that only Congress can create new criminal liability; judges cannot. Previous instances in which courts have imposed civil liability for secondary copyright infringement – based on application of common law principles – do not apply in criminal proceedings, as federal crimes are “solely creatures of statute.” Whatever authority the courts may have had to recognize a contributory theory of copyright liability in the civil context, the courts simply have no power to impose a basis for criminal liability beyond what is expressly authorized by statute.

One surprising inclusion is that the whitepaper supports this well known point — that courts can’t create new criminal liability — by extensively quoting legal analysis from Jay Prabhu from years ago. This is a bit of dagger twisting by Dotcom’s legal team. Prabhu, well after writing those analysis, took a job in the Justice Department, and eventually was put in charge of the DOJ’s “cybercrime” unit — and has been a key prosecutor against a number of copyright cases, including various domain seizures. In fact, he’s the one who signed the indictment against Dotcom. To use his own words against the case is amusing.

The filing also lays out a number of arguments that we’ve seen before, including a further explanation of how the DOJ was being totally disingenuous in arguing that Megaupload refused to remove works it knew were infringing, by pointing out the files they mentioned were ones that Megaupload has clearly been asked to preserve as part of an investigation into copyright infringement.

There’s also an interesting and more detailed than previous discussed defense on the point about Megaupload’s rewards program. We had pointed out how silly it was to use this element against Megaupload, since it was a general rewards program to get people to make use of its cloud storage, and there was nothing in the program that induced more infringement (in fact, it seemed like a great tool for a content creator to make money by releasing his or her own works via the rewards program). On this, Dotcom’s whitepaper points out not just those points, but also (1) the fact that lots of other sites have similar rewards programs (2) specific features Megaupload included in its rewards program that made it bad for infringement (including file size limits and required identification) and (3) the fact that they had dropped the program long before the indictment.

While I do wonder how wise it is to basically give the DOJ their opening brief way before they would actually see it in court — and giving them a lot more time to respond to it — there are a few reasons why this move could make sense. First, they’re so damn confident in their argument that it doesn’t really matter. That may be risky. Another point may be that it signals to the DOJ that they may want to look for ways to extricate itself from the case quickly, because it’s not going to go as easy as the DOJ has assumed from the beginning. The other issue may be that Dotcom and his legal team realized long ago that the court of public opinion probably matters more in the long run than the federal court system in the US.

To that end, of course, the paper has a second section, which has received most of the attention: all about the supposed corrupt process that brought about the indictment. When Megaupload hired Richard Amsterdam, he specifically noted that the details of the case suggested a typical “contract prosecution,” and the paper seeks to lay out that argument clearly, highlighting the close relationship between the Obama Administration (mainly via VP Joe Biden) and MPAA boss Chris Dodd.

Chris Dodd’s jump from the U.S. Senate into the cockpit of the MPAA was an equivalent move. As the new Chairman and CEO of the MPAA, Chris Dodd improperly leveraged his friendship with Joe Biden to achieve the MPAA’s objectives. Former Senator Dodd’s relationship with the Vice President– who comes off manipulated, a cheerfully credulous facilitator – together with the Obama Administration’s ravenous hunger for campaign contributions, has given the MPAA absolute control over how the U.S. Department of Justice plays the game in enforcing copyright law. This capture is nowhere more clearly demonstrated than in the Megaupload/Kim Dotcom prosecution.

Frankly, while this section is getting the most attention, I actually find it to be the weakest and most poorly supported part of the paper, which would probably be more compelling without it. I don’t doubt that the close connections between the MPAA and various folks in the DOJ and in the VP’s office contributed to Megaupload being a target, but trying to make it out as anything more than that seems like a stretch. Yes, the MPAA complained regularly about Megaupload, and that clearly helped put a target on its back. But, it’s quite likely that the over-eager folks at the DOJ ran with this one on their own. The MPAA (with the help of the press) had worked over time to paint Kim Dotcom as “Dr. Evil” of the copyright world. Everything about the process of taking down Megaupload screams of a bunch of feds who totally bought into the theatrical version of the MPAA’s vision, without much effort to understand what was really happening. The myriad mistakes and sloppiness in the case really suggest that the DOJ assumed that the stories the MPAA told were so accurate that everything about this case would be a layup. The investigation, the indictment, the raid, the handling of evidence — all of it was done in a sloppy way — as if they expected no one would challenge any of it.

I’m sure there was influence and pressure that went into this, but painting it as a case where Chris Dodd called up Joe Biden and said, “Destroy Megaupload” is probably a massive exaggeration. Instead, it seems quite likely that MPAA folks just kept playing up the theatrical version of Kim Dotcom as evil (and, Dotcom himself actually helped promote this sort of view of himself at times as well…), and then the DOJ’s imagination combined with its general over-aggressive nature towards any copyright issues just sort of took over from there.

Either way, the paper is definitely a worthwhile read. I’m sure a group of folks at the DOJ are taking their time reading through it quite carefully. I imagine that we’ll eventually see their response in court.

Filed Under: chris dodd, copyright, corruption, criminal contributory infringement, indictment, ira rothken, joe biden, kim dotcom, richard amsterdam, whitepaper
Companies: megaupload