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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA
vs.
ARTEM VAULIN, also known as “tirm”

No. 16 CR 438–1
Judge John Z. Lee

RESPONSE TO DEFENDANT ARTEM VAULIN’S MOTION TO DISMISS
The UNITED STATES OF AMERICA, by its attorney, ZACHARY T. FARDON,
United States Attorney for the Northern District of Illinois, submits the following
response to defendant’s motion to dismiss.

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TABLE OF CONTENTS
I.

INTRODUCTION ......................................................................................................... 1

II. ARGUMENT ............................................................................................................... 1
I.

This Court Should Deny Defendant’s Motion Without Prejudice,
Permitting Him to Refile When He Appears Here ............................................ 1

II. If this Court Decides to Address the Merits Before the Defendant
Appears, It Should Deny the Motion to Dismiss ............................................... 4
1. Defendant May Be Liable for Conspiring to Commit and Aiding
and Abetting Criminal Copyright Infringement Through the
Operation of Torrent Websites ...................................................................... 4
2. The Indictment Validly Charges the Defendant with Conspiring to
Commit and Aiding and Abetting Copyright Infringement......................... 9
3. The Indictment Properly Charges Infringement in the United States ..... 15
4. The Indictment’s Allegations Regarding the Direct–Download
Websites Are Not Vague .............................................................................. 16
III. CONCLUSION .......................................................................................................... 17

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TABLE OF AUTHORITIES
CASES
Appleyard v. Massachusetts, 203 U.S. 222 (1906) ........................................................ 2
Cheney v. United States District Court for the District of Columbia, 542 U.S. 367
(2004) .......................................................................................................................... 4
In re Assets of Martin, 1 F.3d 1351 (3d Cir. 1993) ........................................................ 1
In re Grand Jury Subpoenas, 179 F. Supp. 2d 270 (S.D.N.Y. 2001) ........................... 1
In re Hijazi, 589 F.3d 401 (7th Cir. 2009) ............................................................. 2, 3, 4
Litecubes, LLC v. N. Light Prod., Inc., 523 F.3d 1353 (Fed. Cir. 2008)..................... 15
Los Angeles News Serv. v. Reuters Television Int’l, Ltd., 149 F.3d 987
(9th Cir. 1998) .......................................................................................................... 15
Maydak v. U.S. Dep’t of Education, 150 F. App’x 136 (3rd Cir. 2005) ........................ 1
Patterson v. McLean Credit Union, 491 U.S. 164 (1989) ............................................. 7
Pinkerton v. United States, 328 U.S. 640 (1946) .......................................................... 5
Russell v. United States, 369 U.S. 749 (1962)............................................................. 10
Sony Corp. v. Universal City Studies, Inc., 464 U.S. 417 (1984) ................................. 7
Subafilms, Ltd. v. MGM–Pathe Commc’ns Co., 24 F.3d 1088 (9th Cir. 1994) .......... 15
Tire Eng’g & Distribution, LLC v. Shandong Linglong Rubber Co., 682 F.3d 292
(4th Cir. 2012) .......................................................................................................... 15
United States v. Catino, 735 F.2d 718 (2d Cir. 1984) ................................................... 2
United States v. Cross, 816 F.2d 297 (7th Cir. 1986) ................................................... 6
United States v. Debrow, 346 U.S. 374 (1953) .............................................................. 9
United States v. Eagleson, 874 F.Supp. 27 (D. Mass. 1994) ........................................ 2
United States v. Eng, 951 F.2d 461 (2d Cir. 1991) ....................................................... 1
United States v. Fassnacht, 332 F.3d 440 (7th Cir. 2003).................................... 10, 14
United States v. Gooch, 120 F.3d 78 (7th Cir. 1997) .................................................. 13
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United States v. Grajales-Lemos, No. CR 94-621, 2012 WL 1405712
(S.D. Fla. Mar. 27, 2012) ............................................................................................ 2
United States v. Hach, 162 F.3d 937 (7th Cir. 1998).................................................... 5
United States v. Jones, 678 F.2d 102 (9th Cir. 1982) ................................................... 6
United States v. Marshall, 856 F.2d 896 (7th Cir. 1988) ............................................. 2
United States v. May, 625 F.2d 186 (8th Cir. 1980) ..................................................... 6
United States v. McNeese, 901 F.2d 585 (7th Cir. 1990) ............................................ 10
United States v. Newman, 755 F.3d 543 (7th Cir. 2014) .............................................. 6
United States v. Oliveri, 190 F. Supp. 2d 933 (S.D. Tex. 2001) ................................... 2
United States v. Pino-Perez, 870 F.2d 1230 (7th Cir. 1989) ......................................... 5
United States v. Rebolledo-Delgadillo, 820 F.3d 870 (7th Cir. 2016) .......................... 5
United States v. Slater, 348 F.3d 666 (7th Cir. 2003) .................................................. 6
United States v. Smith, 230 F.3d 300 (7th Cir. 2000) ................................................ 10
United States v. Stanzione, 391 F. Supp. 1201 (S.D.N.Y. 1975) .................................. 2
United States v. Stevens, 543 F. Supp. 929 (N.D. Ill. 1982) ......................................... 6
United States v. White, 610 F.3d 956 (7th Cir. 2010) ....................................... 9, 10, 17
United States v. Yashar, 166 F.3d 873 (7th Cir. 1999)......................................... 10, 13
United States v. Yeh, 2013 WL 2146572 (D. Cal. May 15, 2013) ................................. 2
Update Art, Inc. v. Modin Publ’g Ltd., 843 F.2d 67 (2d Cir. 1988) ............................ 15
STATUTES
17 U.S.C. § 506(a) ...................................................................................................... 6, 8
17 U.S.C. § 506(a)(1)(A) ......................................................................................... 11, 13
17 U.S.C. § 506(a)(1)(C) ................................................................................... 11, 12, 13
18 U.S.C. § 2 ..................................................................................................... 5, 6, 8, 14
18 U.S.C. § 371 ........................................................................................... 5, 6, 8, 10, 14

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18 U.S.C. § 2319(b)(1) ............................................................................................ 11, 13
18 U.S.C. § 2319(d)(2) ...................................................................................... 11, 12, 13
18 U.S.C. § 3290 ............................................................................................................. 2
FEDERAL RULES OF CRIMINAL PROCEDURE
Federal Rule of Criminal Procedure 7(c)(1) ........................................................... 9, 17
Federal Rule of Criminal Procedure 12(b) .................................................................... 1
OTHER AUTHORITIES
Copyright Law Revision: Hearings on H.R. 2223 Before the Subcomm. on Courts,
Civil Liberties, and the Administration of Justice of the House Judiciary Comm.
on the Judiciary, 94th Cong., 1st Sess. 157 (May 8, 1975) ...................................... 8
James Lincoln Young, Criminal Copyright Infringement and a Step Beyond, 30
Copyright L. Symp. (ASCAP) 157 (1983) ................................................................. 8
M. Cherif Bassiouni, International Extradition: United States Law and Practice
828 (5th ed. 2007) ...................................................................................................... 2
Nimmer on Copyright § 15.01[A][2] (2015) .................................................................. 8
S. 968, 112th Cong. § 6(a) (2011) ............................................................................ 7 n.1
Statements on Introduced Bills and Joint Resolutions, 157 Cong. Rec. S. 2932
(May 12, 2011) ............................................................................................................ 7
The Criminalization of Copyright Infringement in the Digital Era, 112 Harv. L.
Rev. 1705 n.39 (1999) ................................................................................................. 8

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I.

INTRODUCTION
The defendant seeks to dismiss the indictment in this case pursuant to Federal

Rule of Criminal Procedure 12(b), claiming the indictment fails to state a crime. R. 27.
Not only is the defendant’s motion premature—for he has not yet appeared in this
case—it glosses over basic principles of criminal law and criminal procedure, most
notably the scope of criminal activity prohibited under conspiracy and aiding and
abetting theories, and the centuries-old principle that the proper vehicle for
challenging the sufficiency of the government’s evidence is a trial, not a motion to
dismiss an indictment properly returned by the grand jury.
II.

ARGUMENT
I.

This Court Should Deny Defendant’s Motion Without
Prejudice, Permitting Him to Refile When He Appears Here
The Court should exercise its discretion to deny the defendant’s motion without

prejudice until he appears in this case, pursuant to the fugitive disentitlement
doctrine, which “provides that the fugitive from justice may not seek relief from the
judicial system whose authority he or she evades.” In re Grand Jury Subpoenas, 179
F. Supp. 2d 270, 285–86 (S.D.N.Y. 2001). This doctrine may be applied to overseas
defendants who resist proceedings in the United States. See, e.g., Maydak v. U.S.
Dep’t of Education, 150 F. App’x 136, 137–38 (3rd Cir. 2005) (per curiam); In re Assets
of Martin, 1 F.3d 1351, 1356 (3d Cir. 1993) (concluding, where defense counsel could
“present no facts from which [the court] could conclude that he is unable to return
[from Russia] to answer the indictment,” that the court “can regard him as a
fugitive”); United States v. Eng, 951 F.2d 461, 462, 464 (2d Cir. 1991); United States

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v. Catino, 735 F.2d 718, 779 (2d Cir. 1984) (holding, where criminal defendant
“actively resisted the extradition request throughout the proceedings,” that the
defendant engaged in “constructive flight from justice”).1
Applying these principles, courts may defer ruling on pre-arraignment motions
filed by defendants who seek something akin to an “advisory opinion” about whether
a particular defense has merit. See, e.g., United States v. Yeh, 2013 WL 2146572, at
*2 (D. Cal. May 15, 2013) (“This order will not reach the merits of defendant’s motion
at this time, as to do so would essentially be to give defendant an advisory opinion on
whether a statute of limitations defense would fly.”); United States v. Grajales-Lemos,
No. CR 94-621, 2012 WL 1405712 (S.D. Fla. Mar. 27, 2012); United States v. Oliveri,
190 F. Supp. 2d 933, 936 (S.D. Tex. 2001); United States v. Eagleson, 874 F. Supp. 27,
29–31 (D. Mass. 1994); United States v. Stanzione, 391 F. Supp. 1201, 1202 (S.D.N.Y.
1975).
This doctrine is discretionary, however, as underscored by In re Hijazi, 589
F.3d 401 (7th Cir. 2009), which held that the unique circumstances of the case—the

This definition of “fugitive” is consistent with other authorities. As used in extradition
treaties, even a “person who is not evading the judicial processes of a requesting state will be
deemed a fugitive from the moment that he is sought for extradition, even though he neither
knows that he is sought nor seeks to evade legal process.” M. Cherif Bassiouni, International
Extradition: United States Law and Practice 828 (5th ed. 2007) (footnote omitted). Thus,
“fugitive” as used in federal extradition statutes “has been held consistently to require only
proof of absence from the indicting jurisdiction, regardless of the defendant’s intent” to avoid
prosecution. United States v. Marshall, 856 F.2d 896, 898 (7th Cir. 1988) (citing Appleyard v.
Massachusetts, 203 U.S. 222, 227 (1906)). Likewise, the defendant is a fugitive for statute of
limitations purposes. In relevant part, 18 U.S.C. § 3290 tolls the statute of limitations for
“any person fleeing from justice.” Under that statute, a defendant is a fugitive if he intends
to remain outside the jurisdiction in which he is charged, and such intent “may be inferred
where the defendant fails to surrender to authorities after learning of the charges against
him.” Marshall, 856 F.2d at 897–98, 900 (citing Catino, 735 F.2d at 722).
1

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impasse in the case, serious jurisdictional questions, and certain pragmatic
considerations—augured against applying the fugitive disentitlement doctrine.
Hijazi was, by its own terms, limited to the “unusual circumstances of this case,” id.
at 403, many of which are not present here.
First, unlike the ongoing extradition in this case, which is proceeding
expeditiously, the Hijazi case was at “an impasse” because the defendant resided in
a country (Kuwait) that refused to extradite and, nonetheless, the district court had
twice refused to rule on the defendant’s motion attacking the jurisdiction of the case.
Id. at 403. Second, pragmatic concerns—entirely absent here—made application of
the doctrine inappropriate in Hijazi. Objecting to infringement on its “sovereignty,”
Kuwait sent “numerous letters” to, and held meetings with, Department of Justice
officials, and refused to turn over Hijazi because it did “not believe the United States
ha[d] any basis for asserting legal jurisdiction over Mr. Hijazi for acts alleged to have
taken place in Kuwait.” Id. at 405. Thus, invoking fugitive disentitlement not only
distressed relations with Kuwait, but also made it less likely that Kuwait or another
country would someday exercise its “discretion to extradite Hijazi if it so chooses.” Id.
Third, Hijazi’s fugitive disentitlement decision reflected the case’s serious
jurisdictional challenges. So attenuated was Hijazi’s connection to the United States,
and so unclear was the statute’s application to “crimes [that] have been committed in
a transaction . . . between two private companies operating in Kuwait” (leading
Kuwait to claim that “criminal jurisdiction lies in Kuwait” alone), that Hijazi’s motion
raised “serious questions about the reach of U.S. law.” 589 F.3d at 405, 411. The Court

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likened these fundamental questions to the separation-of-powers concern in Cheney
v. U.S. Dist. Court for D.C, 542 U.S. 367, 382 (2004), and concluded that they (along
with Kuwait’s formal protests) made mandamus appropriate. 589 F.3d at 411–12.
Here, the defendant seeks to use this Court’s resources to adjudicate a motion
while he fights extradition. This Court should deny such efforts and give Poland the
opportunity to adjudicate the government’s extradition request.
II.

If this Court Decides to Address the Merits Before the
Defendant Appears, It Should Deny the Motion to Dismiss
1.

Defendant May Be Liable for Conspiring to Commit and
Aiding and Abetting Criminal Copyright Infringement
Through the Operation of Torrent Websites

Throughout his motion, the defendant invokes the concept of civil “secondary
copyright liability” to argue that criminal liability cannot extend to the defendant’s
conduct. The defendant first claims he simply facilitated the “[t]he reproduction and
distribution of mere torrent files” in a way that cannot constitute direct copyright
infringement. Then, the defendant declares that civil “secondary copyright
liability . . . is only a common-law theory of civil liability that cannot be criminally
prosecuted absent an express act of Congress.” R. 27 at 2 (emphases in original).
These arguments are red herrings that should be rejected by the Court.
First, the defendant downplays the significance of “torrent” sites like the
defendant’s. As alleged in paragraph 1(a)–(b) of the indictment, KAT was a website
that indexed specialized “.torrent” files for copyrighted content, such as movies or
television programs. These indexed files enabled users to obtain copyrighted content
from other users, including from the defendant’s own servers. KAT therefore

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functioned like a (lucrative) flea market for infringing movies, television shows, video
games, music, and computer software. 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.
But the larger flaw with the defendant’s theory is that it ignores criminal
conspiracy (under 18 U.S.C. § 371) and aiding and abetting (under 18 U.S.C. § 2)
liability. Under § 371, the defendant bears responsibility for all reasonably
foreseeable acts committed by co-conspirators that further the conspiracy. See, e.g.,
Pinkerton v. United States, 328 U.S. 640, 647 (1946); United States v. Hach, 162 F.3d
937, 951 (7th Cir. 1998). There is therefore no relevant distinction between “direct”
and “secondary” copyright infringement within a criminal conspiracy to commit
copyright infringement; a defendant is accountable for any act of reasonably
foreseeable infringement committed by any co-conspirator that furthers the
conspiracy. Likewise for aiding and abetting liability: as long as the elements of § 2
are met—for example, that the defendant aided or induced the crime’s commission—
he may be charged as a principal even if he did not personally commit the crime. 18
U.S.C. § 2; United States v. Rebolledo-Delgadillo, 820 F.3d 870, 876 (7th Cir. 2016).
And make no mistake, § 2 applies to all violations of the criminal code. See,
e.g., United States v. Pino-Perez, 870 F.2d 1230, 1233 (7th Cir. 1989) (“Congress
doesn’t have to think about aider and abettor liability when it passes a new criminal
statute, because section 2(a) attaches automatically. The question is not whether

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section 2(a) is applicable—it always is.”); United States v. Jones, 678 F.2d 102, 105
(9th Cir. 1982) (“The aiding and abetting provision of 18 U.S.C. § 2, however, is
applicable to the entire criminal code.”); United States v. May, 625 F.2d 186, 194 (8th
Cir. 1980) (“We think that section 2(b), like section 2(a), is applicable to the entire
criminal code.”). In other words, “[a]iding or abetting is a proper basis of conviction
in every prosecution.” United States v. Newman, 755 F.3d 543, 545 (7th Cir. 2014)
(emphasis added). The same goes for conspiracy liability under § 371, which applies
to “any offense against the United States.” 18 U.S.C. § 371.
If the defendant was right—that copyright law, unlike all other offenses in the
criminal code, is exempt from § 2 and § 371 liability—one would certainly expect a
court to have said so in the four decades since the Copyright Act’s enactment. But
none has, despite scores of defendants across the country who have been charged with
and found guilty of conspiring and aiding and abetting copyright infringement. See,
e.g., United States v. Slater, 348 F.3d 666, 671 (7th Cir. 2003) (upholding conviction
for conspiring to infringe copyrights in violation of § 371); United States v. Cross, 816
F.2d 297, 303 (7th Cir. 1986) (same); United States v. Stevens, 543 F. Supp. 929, 948
(N.D. Ill. 1982) (denying motion to dismiss indictment that charged violations of 17
U.S.C. § 506(a) and 18 U.S.C. § 2).
Despite the routine application of § 371 and § 2 to criminal copyright
prosecutions, consistently followed by courts for decades, defendant now invites this
Court to break new ground by relying on misleading citations. This Court should
decline defendant’s invitation for at least two reasons. First, the defendant cites Sony

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Corp. v. Universal City Studies, Inc., 464 U.S. 417, 434 (1984), for the proposition that
“[s]econdary liability in civil copyright is a common-law creation of judges, but it is
not a federal crime enacted by Congress.” R. 27 at 9. But Sony says nothing about
statutory criminal copyright violations, and even alludes to the fact that “vicarious
liability is imposed in virtually all areas of the law.” Id. at 435.
Second, the defendant asserts that “Congress specifically declined to enact
statutes that would have authorized prosecution of Internet providers who link to
infringing materials—the exact conduct the government seeks to prosecute here,”
citing two bills from 2010 and 2011. R. 27 at 9. Needless to say, legislative proposals
from decades after the Copyright Act’s enactment in 1976 have no logical connection
to the issues here. Nor may one draw conclusions from Congressional inaction.
Patterson v. McLean Credit Union, 491 U.S. 164, 175 n. 1 (1989) (“It is impossible to
assert with any degree of assurance that congressional failure to act represents
affirmative congressional approval of the Court’s statutory interpretation.” (internal
quotation marks omitted)). But even putting aside these interpretive flaws, the
defendant is wrong about what these recently proposed statutes involved: they sought
to create civil actions for the Attorney General to take down websites that facilitate
copyright infringement. See Statements on Introduced Bills and Joint Resolutions,
157 Cong. Rec. S. 2932 (May 12, 2011).2

What’s more, defendant ignores the savings clause for the 2011 bill, which provided that
“[n]othing in this Act shall be construed to limit or expand civil or criminal remedies available
to any person (including the United States) for infringing activities on the Internet pursuant
to any other Federal or State law.” S. 968, 112th Cong. § 6(a) (2011) (emphasis added).
2

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Indeed, the only relevant legislative history—that of the Copyright Act itself—
confirms that aiding and abetting liability for criminal copyright infringement was
contemplated by the drafters: “The provision in present section 104 [of the Copyright
Act] for aiders and abettors has been removed, but these individuals will be liable to
prosecution under 18 U.S.C. § 2.” Copyright Law Revision: Hearings on H.R. 2223
Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of
the House Judiciary Comm. on the Judiciary at 138, 94th Cong., 1st Sess. 157 (May
8, 1975) (statement of Irwin Goldbloom, Deputy Assistant Attorney General of the
DOJ Civil Division).3
In sum, if users criminally infringed copyrighted works through torrent files
offered on the defendant’s websites—as the defendant appears to acknowledge in his
motion—then the defendant and his codefendants may be charged with conspiring
with and aiding and abetting those users, provided the indictment adequately alleges
violations of § 371 and § 2. Nothing about the defendant’s use of BitTorrent
technology to carry out his crime makes him categorically above the law. This Court

Legal scholars are also unanimous in confirming that 18 U.S.C. § 2 applies to copyright
infringement. See, e.g., 4 Nimmer on Copyright, at §15.01[A][2], at 15–10 (stating that
abettor liability for copyright infringement is based on the general provision in 18 U.S.C. §
2); James Lincoln Young, Criminal Copyright Infringement and a Step Beyond, 30 Copyright
L. Symp. (ASCAP) 157, 169 (1983) (“Even though this ‘aid or abet’ provision was eliminated
from the language of section 506(a) in the 1976 Copyright Act . . . continued inclusion of such
a provision in the new section 506(a) would have been merely superfluous, however, because
under the provisions of 18 U.S.C. § 2, aiders, abettors, and other accessories before the fact
of any offense defined as criminal by federal law are treated as principals in the commission
of the offense. Therefore, there is no longer the need to include any mention of aiders or
abettors in section 506(a).”); The Criminalization of Copyright Infringement in the Digital
Era, 112 Harv. L. Rev. 1705, 1722 n.39 (1999) (“The new Act removed references to aider and
abettor liability. However, because such liability was still possible under the general
provision treating aiders and abettors of any federal criminal offense as principals, this
change appears to be simply a removal of surplusage.”).
3

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should therefore decline the defendant’s invitation to work a sea change in blackletter criminal law and immunize from prosecution those who conspire to commit and
aid and abet copyright infringement.
2.

The Indictment Validly Charges the Defendant with
Conspiring to Commit and Aiding and Abetting Copyright
Infringement

Having removed the distraction of secondary civil liability, this Court may
readily find the indictment valid. Under the Federal Rules of Criminal Procedure, a
motion to dismiss an indictment may be made only in narrow circumstances
challenging certain “defects.” Rather than allege such defects, the defendant argues
the facts of the case—as if this Court were the jury—and presents a remarkably onesided portrayal, contrary to governing law. This Court should deny the defendant’s
invitation to weigh in on the facts of the case. Whether the evidence satisfies proof
beyond a reasonable doubt should be decided by a factfinder at trial.
Rule 7(c)(1) of the Federal Rules of Criminal Procedure provides that an
indictment “shall be a plain, concise and definite written statement of the essential
facts constituting the offense charged.” This rule is designed to eliminate prolix
indictments and “to secure simplicity in procedure.” United States v. Debrow, 346 U.S.
374, 376 (1953). In light of Rule 7(c)(1)’s emphasis on brevity, an indictment is tested
before trial “on its face, regardless of the strength or weakness of the government’s
case.” United States v. White, 610 F.3d 956, 958 (7th Cir. 2010).
An indictment is legally sufficient if it: (1) states “each of the elements of the
crime charged”; (2) provides “adequate notice of the nature of the charges so that the
accused may prepare a defense”; and (3) allows “the defendant to raise the judgment
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as a bar to future prosecutions for the same offense.” United States v. Fassnacht, 332
F.3d 440, 444–45 (7th Cir. 2003) (citing Russell v. United States, 369 U.S. 749, 763–
63 (1962); United States v. Smith, 230 F.3d 300, 305 (7th Cir. 2000)). “In reviewing
the sufficiency of an indictment, a court should consider the challenged count as a
whole and should refrain from reading it in a hypertechnical manner.” United States
v. McNeese, 901 F.2d 585, 602 (7th Cir. 1990). An indictment that “‘tracks’ the words
of a statute to state the elements of the crime is generally acceptable, and while there
must be enough factual particulars so the defendant is aware of the specific conduct
at issue, the presence or absence of any particular fact is not dispositive.” White, 610
F.3d at 958–59 (quoting Smith, 230 F.3d at 305).
Applying that standard and viewing the facts in the indictment in the light
most favorable to the government, as this Court is required to do at this stage of the
prosecution, United States v. Yashar, 166 F.3d 873, 880 (7th Cir. 1999), the
indictment here meets the threshold of stating the elements of the offense, providing
notice to the defense about the nature of the charges, and allowing the defense to
raise the judgment as a bar to future prosecutions. See White, 610 F.3d at 958–59.
To briefly outline the charges, Count 1 charges the defendant with a conspiracy
that took place between November 2008 and July 16, 2016, in the Northern District
of Illinois and elsewhere, in violation of 18 U.S.C. § 371. A properly alleged § 371
violation has the following elements: (1) an express or implied agreement between
two or more people to commit a crime, (2) defendant knowingly became a member of
the conspiracy with an intent to advance the conspiracy, and (3) one of the

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conspirators committed an overt act in an effort to advance the goals of the
conspiracy. Seventh Circuit Criminal Pattern Jury Instructions §§ 5.08(A), 5.09.
Here, the alleged crimes that the defendant and others agreed to commit are both
criminal copyright infringement offenses committed willfully and for purposes of
commercial advantage and private financial gain: first, infringement of at least ten
copies during a 180-day period with a retail value of more than $2,500, in violation of
17 U.S.C. § 506(a)(1)(A) and 18 U.S.C. § 2319(b)(1); and second, infringement of a
work being prepared for commercial distribution, in violation of 17 U.S.C.
§ 506(a)(1)(C) and 18 U.S.C. § 2319(d)(2). The charging language of Count 1, ¶ 2,
properly tracks those elements and that statutory language.
The indictment, moreover, goes well beyond tracking the language of the
charging statutes by containing detailed factual allegations in Count 1, ¶¶ 1 and 325. Paragraph 1(b) alleges that the defendant operated Kickass Torrents (KAT), “a
commercial website that facilitated and promoted the reproduction and distribution
of copyrighted content over the Internet without the authorization of the copyright
owners.” The indictment further alleges that the defendant operated torcache.net—
“a commercial website that stored and hosted torrent files for the public to download,
and encouraged users to upload torrent files for a variety of copyrighted content
without authorization, such as movies and television shows,” ¶ 1(c)—and numerous
“direct download websites,” including leechmonster.com, rolly.com, solarmovie.com,
solarmovie.ph,

iwatchfilm.com,

movie2b.com,

hippomovies.com,

bino.tv,

and

moviepro.net, all “commercial websites that enabled registered users to download or

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stream copyrighted movies and other media directly from the website, usually in
exchange for a payment, without authorization from the copyright holders of that
media.” ¶ 1(d).
Paragraph 3 alleges that it was part of the conspiracy that the defendant and
his conspirators “designed, developed, and operated KAT, torcache.net, and the direct
download websites in order to encourage, induce, facilitate, engage in, and generate
millions of dollars from the unlawful reproduction and distribution of copyrightprotected media, including movies—some of which were still playing in theaters—
television shows, music, video games, computer software, and electronic books,
without the authorization of copyright holders.” The indictment goes to great lengths
to detail how the defendants operated KAT, ¶¶ 4–20, and the direct download
websites, ¶¶ 21–25. These allegations all therefore sufficiently allege an agreement
between defendant and others to commit criminal copyright infringement, and that
defendant knowingly entered into that agreement to commit criminal copyright
infringement. And Count 1 alleges not just one overt act, but two dozen overt acts
taken to effect the objects of the conspiracy, ¶¶ 26(a)–(x). The defendant therefore has
more than enough notice about the nature of Count 1.
The defendant is also charged with aiding and abetting criminal copyright
infringement for purposes of commercial advantage or private financial gain:
in Counts 2 through 12 by distributing a work being prepared for commercial
distribution, by making it available on a computer network accessible to members of
the public, in violation of 17 U.S.C. § 506(a)(1)(C) and 18 U.S.C. §§ 2319(d)(2) and 2;

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and in Count 13 by the reproduction and distribution of at least ten copies and
phonorecords of one or more copyrighted works with a total retail value of more than
$2,500 during a 180-day period, in violation of 17 U.S.C. § 506(a)(1)(A) and 18 U.S.C.
§§ 2319(b)(1) and 2.
Again, the language of Counts 2 through 12 properly tracks the elements and
statutory language of sections 506(a)(1)(C), 2319(d)(2), and 2. Each count alleges the
approximate date of the offense, the jurisdiction, and the title of the infringed
copyrighted work. In addition, each count incorporates the factual allegations from
¶ 1 of Count 1, thus incorporating the descriptions of KAT, torcache.net, and the
many direct download websites. Count 13 similarly tracks the elements and statutory
language of sections 506(a)(1)(A), 2319(b)(1), and 2; and, with respect to factual
particulars, again incorporates the allegations from ¶ 1. Count 13 further alleges the
approximate date of the offense and the jurisdiction. In fact, by explicitly alleging
that the defendant aided and abetted criminal copyright infringement in these
counts, the indictment actually goes beyond what the Seventh Circuit requires. See,
e.g., United States v. Gooch, 120 F.3d 78, 81 (7th Cir. 1997) (“It is unnecessary that
the indictment specifically charge aiding and abetting.”)
The defendant is therefore left to quibble about the factual allegations of the
indictment, yet fails to construe those facts in the government’s favor as he must do.
Yashar, 166 F.3d at 880. Indeed, the defendant’s one-sided version fails even to
mention many of the allegations in the indictments. For example, the defendant
claims “KAT is no more than a search engine” providing “hyperlinks,” R. 27 at 6, but

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ignores the allegations that the defendant and his co-conspirators did more than just
link to content. Instead, as alleged, they sought out infringing material and
trumpeted that to their users, targeting the infringement-minded with rewards and
honors for posting torrents for copyright infringement material in order to blatantly
promote and encourage the availability of entire categories of infringing works. See,
e.g., Indictment ¶¶ 5–12. Put differently, the indictment alleges that the defendant
and his co-conspirators did far more than simply create “automated operations that
copy, store, and distribute torrents.” R. 27 at 12. Rather, the indictment sufficiently
alleges that the defendant entered into an agreement with others to commit copyright
infringement, and aided and abetted the copyright infringement of others, as §§ 2
and 371 require.
To be sure, the defendant may claim at trial that he lacked the requisite mens
rea, or that he was too remote from the criminal activity he profited from to satisfy
the elements of aiding and abetting. But willfulness, intent, and knowledge are
classic subjects for the factfinder at trial, not matters to be decided by pretrial motion
from the safety of a foreign jurisdiction.
In other words, far from the freewheeling inquiry into the allegations that the
defendant urges, as if sitting as the jury, the test of an indictment’s validity is more
circumscribed. And given that the indictment here has provided the defendant with
more than “adequate notice of the nature of the charges so that the accused may
prepare a defense,” Fassnacht, 332 F.3d at 444–45, the indictment is valid.

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3.

The Indictment Properly Charges Infringement in the United
States

Next, the defendant claims the indictment is defective for failing to claim
“specific allegation[s] of actual infringements in the territory of the United States.”
R.27 at 16. This argument is equally meritless.
Under the so-called “predicate–act doctrine,” the Copyright Act applies to
extraterritorial conduct “as long as some act of infringement occurred in the United
States.” Tire Eng’g & Distribution, LLC v. Shandong Linglong Rubber Co., 682 F.3d
292 (4th Cir. 2012); see also Los Angeles News Serv. v. Reuters Television Int’l, Ltd.,
149 F.3d 987, 992 (9th Cir. 1998); Update Art, Inc. v. Modin Publ’g Ltd., 843 F.2d 67,
73 (2d Cir. 1988). The vast majority of courts agree that there is no requirement that
the infringing act occur “entirely” within the United States—only that the infringing
act not take place entirely abroad. See, e.g., Litecubes, LLC v. N. Light Prod., Inc., 523
F.3d 1353, 1371 (Fed. Cir. 2008); Subafilms, Ltd. v. MGM–Pathe Commc’ns Co., 24
F.3d 1088, 1098 (9th Cir. 1994) (en banc) (“[W]e reaffirm that the United States
copyright laws do not reach acts of infringement that take place entirely abroad.”).
Consistent with this requirement, the indictment provides adequate notice of
infringement occurring within the United States. Count 1, ¶ 1(b), alleges, for
example, that “[m]illions of members were registered with KAT, many of whom
resided in the United States.” The indictment then alleges in ¶ 4, “It was further part
of the conspiracy that defendants Artem Vaulin . . . made available and caused others
to make available without authorization vast amounts of copyrighted content on KAT
to millions of individuals in the United States by collecting and uploading torrent

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files to KAT, and soliciting and inducing KAT’s registered users to upload torrent
files to KAT, a significant portion of which were torrent files for content protected by
United States copyright laws.” Other allegations in the indictment must be read in
light of these background paragraphs, including, for example, Counts 2 through 13,
which allege the substantive criminal copyright infringement charges, as well as
Count 1, ¶ 5 (alleging that the defendants “operated and caused others to operate
torcache.net to store and maintain the torrent files for infringed copyrighted content
uploaded by KAT users and others, and to enable KAT’s users and the general public
to download those files”) and ¶ 15 (alleging that the defendants “operated and caused
others to operate a direct download feature on KAT to enable users to download
copyright-protected material directly from the website httptorrents.com, which was
operated by the defendants and others”). Defendant is free to defend at trial that the
government has not proven an infringing act in the United States beyond a
reasonable doubt, but at this stage, the defendant is sufficiently on notice of the
alleged infringement within the United States.
4.

The Indictment’s Allegations Regarding
Download Websites Are Not Vague

the

Direct–

Finally, the defendant largely ignores the allegations regarding his operation
of the direct download websites, perhaps because he cannot mischaracterize those as
mere “search engines.” Instead, the defendant complains that the “[a]llegations that
defendants stored or distributed infringing materials are scattered, skimpy or
vaguely general.” R. 27 at 14. Once again, the defendant fundamentally
misunderstands the role of an indictment in criminal practice. It need not—indeed,

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should not—offer a detailed recitation of the government’s evidence. Here, the
indictment identifies the many direct download websites by name and describes how
they operated. Indictment ¶ 1(d). In Counts 2 through 13, the indictment identifies
the relevant time period of infringement and the location, and in Counts 2 through
12, the indictment identifies the title of the infringed copyrighted work. These
allegations are plain, concise, and definite, precisely all that is required by the
Federal Rules of Criminal Procedure and the relevant case law.4 The defendant thus
has sufficient notice of the nature of the charges against him.
III.

CONCLUSION
At its core, the defendant’s argument is nothing more than an assertion that

the government cannot prove the allegations in the indictment beyond a reasonable
doubt. But the proper way for a defendant to challenge the sufficiency of the evidence
against him is by exercising his right to a jury trial—not by asking this Court to
dismiss an indictment properly returned by the grand jury. For this reason, in judging
the sufficiency of an indictment, courts “do not consider whether any of the charges
have been established by evidence or whether the government can ultimately prove
its case.” White, 610 F.3d at 959. The government stands ready to prove its case if the
defendant proceeds to trial, and should be allowed that opportunity.

The defendant’s entire argument with respect to Counts 14, 15, and 16 consists of the
following: “Obviously, the money laundering charges containing in Counts Fourteen through
Sixteen depend on underlying predicates of criminal copyright infringement. Because Counts
One through Thirteen fails to state an offense, the dependent money laundering counts must
also be dismissed.” R.27 at 16–17. For the reasons discussed above, this Court should reject
this theory. The money laundering charges, like the charges for criminal copyright
infringement, fully comply with Rule 7(c)(1).
4

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For the foregoing reasons, the government respectfully requests that this
Court deny defendant’s motion to dismiss the indictment.
Dated:

November 4, 2016

Respectfully submitted,
ZACHARY T. FARDON
United States Attorney
By:

/s/ William E. Ridgway
WILLIAM E. RIDGWAY
DEVLIN N. SU
Assistant United States Attorneys
219 South Dearborn Street, 5th Floor
Chicago, Illinois 60604
(312) 469-6233
RYAN K. DICKEY
Senior Counsel
Criminal Division, Computer Crime and
Intellectual Property Section
1301 New York Avenue NW
Washington, DC 20005
(202) 616-1509

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