Case: 1:16-cr-00438 Document #: 50 Filed: 08/04/17 Page 1 of 29 PageID #:297

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
ARTEM VAULIN,
Defendant.

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16 CR 438-1
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
Defendant Artem Vaulin (“Vaulin”) has been indicted along with two codefendants on various charges stemming from his alleged involvement in operating
a BitTorrent website, as well as other related websites.

The charges in the

indictment comprise criminal copyright infringement under 17 U.S.C. § 506 of the
Copyright Act, conspiring to commit criminal copyright infringement under 18
U.S.C. § 371, aiding and abetting criminal copyright infringement under 18 U.S.C.
§ 2, money laundering under 18 U.S.C. § 1956(a)(2)(A) and § 1956(a)(2)(B)(i),
conspiring to commit money laundering under 18 U.S.C. § 1956(h), and aiding and
abetting money laundering, again under 18 U.S.C. § 2.
Vaulin, who is currently in Poland and contesting extradition, has moved to
dismiss the indictment. In response, the government argues among other things
that, because Vaulin is a fugitive and refuses to appear in this proceeding, the
Court should decline to entertain his motion under the fugitive disentitlement
doctrine. For the following reasons, the Court finds that the fugitive disentitlement
doctrine applies here.

Nevertheless, following the path charted by the Seventh

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Circuit in United States v. Bohhari, 757 F.3d 664 (7th Cir. 2014), and for the sake of
judicial efficiency, the Court reviews and denies Vaulin’s motion to dismiss [26] on
the merits.
I.

Background

The following allegations are taken from the indictment and accepted as true
in evaluating Vaulin’s motion to dismiss. United States v. Moore, 563 F.3d 583, 586
(7th Cir. 2009).
At all times relevant to the indictment, Vaulin and his co-defendants
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.” Indictment, Count 1 ¶¶ 1(b),
1(e), ECF No. 19. KAT solicited, collected, and indexed “torrent files.” Id., Count 1,
¶¶ 1(b), 4, 9. A torrent file contains instructions for identifying other users of the
so-called “BitTorrent” network. Id., Count 1, ¶ 1(a). The file further instructs users
on how to download copies of media from other users over the Internet using a
BitTorrent client, or software.

Id.

Torrent files, therefore, are not media

themselves; they are a means of connecting a user desiring a copy of media with
other users willing to distribute. By obtaining torrent files from sites like KAT,
users of a BitTorrent network locate one another, and, by use of a BitTorrent client,
distribute copies of media or download their own. Id. 1

For a useful overview of BitTorrent technology, see Sean B. Karunaratne, Note, The
Case Against Combating Bittorrent Piracy Through Mass John Doe Copyright Infringement
Lawsuits, 111 Mich. L. Rev. 283, 289–90 (2012).
1

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KAT had a large following of users—“[m]illions of members . . . many of
whom resided in the United States.” Id., Count 1 ¶ 1(b). KAT’s network utilized
computer servers throughout the world, including servers located in Chicago. Id.,
Count 1 ¶ 18.

The site “generate[d] millions of dollars from the unlawful

reproduction and distribution of copyright-protected media, including movies—some
of which were still playing in theaters—television shows, music, video games,
computer software, and electronic books.” Id., Count 1 ¶ 3.

Vaulin and his co-

defendants accomplished this by “soliciting and causing others to solicit extensive
online advertising, sales of KAT’s visitor traffic, and KAT user donations.” Id.,
Count 1 ¶ 13.
As one might surmise from this amount of revenue, the KAT website was
quite elaborate. Torrent files were indexed by genre in order to allow KAT users “to
easily browse, locate, and obtain their desired infringed copyrighted content.” Id.,
Count 1 ¶¶ 9–10. To assist in the downloading and distribution process, Vaulin and
his co-defendants developed and offered their own BitTorrent client for their users.
Id., Count 1 ¶ 19. Users notified one another when new content was available, and
the website encouraged and rewarded frequent users with awards and accolades.
Id., Count 1 ¶¶ 6, 11. At the same time, Vaulin and his co-defendants instituted a
code of conduct that banned users for “uploading torrents that contained malware,
promoted other torrent sites, or facilitated the download of ‘banned’ content.” Id.,
Count 1 ¶ 12. There were no sanctions, however, for uploading torrent files for
copyright-protected content. Id.

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As a result of KAT’s success, Vaulin and his co-defendants received donations
from KAT users and made millions from online advertising revenues. Id., Count 1
¶¶ 7, 13. But, given that KAT facilitated the unauthorized exchange of copyrighted
material, they hid these proceeds in bank accounts owned by various shell
companies.

Id., Count 1 ¶ 14.

In addition, they were forced to change KAT’s

domain name at various times, “in part to avoid and circumvent court orders.” Id.,
Count 1 ¶ 16. And, in order to hide their operations, Vaulin and his co-defendants
housed KAT and related sites under a Ukranian company called “Cryptoneat.” Id.,
Count 1 ¶ 24.
In addition to KAT, Vaulin and his co-defendants operated a number of
“direct download websites.”

Id., Count 1 ¶ 21.

These websites, rather than

collecting torrent files, made unauthorized copies of copyrighted works directly
available for users to download.

Vaulin and his co-defendants also hid

Id.

operation of the direct download websites by way of Cryptoneat. Id., Count 1 ¶ 24.
Based on these alleged activities, the indictment charges Vaulin and his codefendants with sixteen counts of criminal conduct. Count 1 charges them with
conspiring to violate 17 U.S.C. § 506(a)(1)(A) and § 506(a)(1)(C), two different
provisions of the criminal copyright statute. 2 Count 2 charges them with violating
Section 506(a)(1)(A) makes it illegal for any person to willfully infringe a copyright
“for purposes of commercial advantage or private financial gain.” 17 U.S.C. § 506(a)(1)(A).
2

Section 506(a)(1)(C) prohibits a person from willfully infringing a copyright “by the
distribution of a work being prepared for commercial distribution, by making it available on
a computer network accessible to members of the public, if such person knew or should
have known that the work was intended for commercial distribution.” 17 U.S.C.
§ 506(a)(1)(C).

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and aiding and abetting a violation of 17 U.S.C. § 506(a)(1)(C) in relation to the
commercial movie, “The Butler,” on September 17, 2013.

Counts 3 through 12

charge the same, but in relation to ten additional commercial movies over a period
spanning June 24, 2016, through July 7, 2016. Lastly, Counts 13 through 16 charge
money laundering, conspiracy to commit money laundering, and aiding and
abetting money laundering in connection with these infringement activities.
II.

Legal Standard

Under Rule 7(c)(1), “[t]he indictment or information must be a plain, concise,
and definite statement of the essential facts constituting the offense charged.” Fed.
R. Crim. P. 7(c)(1). “For each count, the indictment or information must give the
official or customary citation of the statute, rule, regulation, or other provision of
law that the defendant is alleged to have violated.” Id. An indictment satisfies
Rule 7(c)(1) if it “(1) states all the elements of the crime charged; (2) adequately
informs the defendant of the nature of the charges so that he may prepare a
defense; and (3) allows the defendant to plead the judgment as a bar to any future
prosecutions.” United States v. White, 610 F.3d 956, 958 (7th Cir. 2010).
If an indictment “‘tracks’ the words of a statute to state the elements of the
crime,” it generally suffices, 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.” Id. “Indictments are reviewed on a practical
basis and in their entirety, rather than ‘in a hypertechnical manner.’”

United

States v. Smith, 230 F.3d 300, 305 (7th Cir. 2000) (quoting United States v.

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McNeese, 901 F.2d 585, 602 (7th Cir. 1990)). When doing so, the allegations in the
indictment are accepted as true and viewed in a light most favorable to the
government. Moore, 563 F.3d at 586; United States v. Yashar, 166 F.3d 873, 880
(7th Cir. 1999).
III.

Analysis

Vaulin seeks to dismiss the indictment on a number of grounds. But because
Vaulin is in Poland and currently resisting extradition to the United States, the
Government first asks that the Court deem him to be a fugitive and exercise its
discretion to dismiss his motion without prejudice under the fugitive disentitlement
doctrine.
A.

Fugitive Disentitlement Doctrine

The fugitive disentitlement doctrine vests courts with discretion to dismiss a
request for relief where “the party seeking relief is a fugitive while the matter is
pending.” Degen v. United States, 517 U.S. 820, 824 (1996). The Supreme Court
has explained that
[n]o persuasive reason exists why [a court] should proceed to
adjudicate the merits of a criminal case after the convicted defendant
who has sought review escapes from the restraints placed upon him
pursuant to the conviction. While such an escape does not strip the
case of its character as an adjudicable case or controversy, we believe it
disentitles the defendant to call upon the resources of the [c]ourt for
determination of his claims.
Molinaro v. New Jersey, 396 U.S. 365, 366 (1970) (per curiam).
Three core principles animate the doctrine. First, as a practical matter, it is
difficult to enforce a judgment against a fugitive who is, by definition, outside of the

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court’s reach.

Degen, 517 U.S. at 824.

The Seventh Circuit has likened this

principle to “mutuality,” in that “if [a criminal defendant] wants the United States
to be bound by a decision . . . he should be similarly willing to bear the consequences
of [that] decision.”

In re Hijazi, 589 F.3d 401, 413 (7th Cir. 2009).

Second,

disentitlement “redress[es] the indignity visited upon the District Court by [a
fugitive’s] absence from the criminal proceeding,” essentially denying the fugitive
the benefit of unclean hands.

Degen, 517 U.S. at 824, 828.

And, finally, the

doctrine discourages escape and promotes voluntary surrender in order to ensure
courts are respected and operate efficiently. Id.
These principles, however, do not mandate invocation of the doctrine. The
Supreme Court, while “acknowledg[ing] disquiet at the spectacle of a criminal
defendant reposing [abroad], beyond the reach of our criminal courts, while at the
same time mailing papers to the court . . . and expecting them to be honored,” has
indicated that invoking the doctrine to deny all relief is an extreme sanction to be
reserved only for those circumstances in which it is warranted. Id. at 828–29.
While the fugitive disentitlement doctrine originated as a response to appeals
of convicted defendants on the run, e.g., Molinaro, 396 U.S. at 366, the Seventh
Circuit has suggested that it can apply where a fugitive defendant seeks to dismiss
an indictment, e.g., Bokhari, 757 F.3d at 671–73 & n.7; cf. Hijazi, 589 F.3d at 412–
14. In Hijazi, for example, the defendant faced criminal charges in the United
States stemming from certain dealings with the U.S. Army and one of its
contractors in Kuwait. 589 F.3d at 403. Hijazi voluntarily surrendered to Kuwaiti

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authorities, but Kuwait refused to extradite him. Id. at 405. Meanwhile, Hijazi
filed a motion to dismiss the indictment through attorneys in the United States,
arguing in part that the statutes under which he was charged did not apply
extraterritorially.

Id.

The district court held that the fugitive disentitlement

doctrine did not directly apply to Hijazi, given that he had not been convicted of a
crime, had never even visited the United States, and voluntarily surrendered in
Kuwait. Id. at 406. The court nevertheless reasoned that, because Hijazi had little
to lose from filing the motion, mutuality concerns undergirding the doctrine
required that his motion be denied and declined to enter a ruling on the merits. Id.
The Seventh Circuit reversed.

It began by explaining why a writ of

mandamus should issue to direct the district court to rule on Hijazi’s motion,
observing in part that his motion raised “importan[t] and delica[te]” questions as to
the extraterritorial reach of the statutes at issue. Id. at 408–12. Then, addressing
the fugitive disentitlement doctrine, the court noted that Hijazi had only set foot in
the United States once for reasons unrelated to the case. Id. at 412. Thus, in the
court’s view, Hijazi “did not flee from the jurisdiction or from any restraints placed
upon him.” Id. This, in light of Hijazi’s voluntary surrender to Kuwaiti authorities
and their ability to extradite him if they so wished, led the court to conclude that
the fugitive disentitlement doctrine did not apply. Id. at 412–13. Finally, the court
held that the district court had undervalued the adverse consequences that Hijazi
would face if he lost the motion to dismiss. Id. at 413. Highlighting the serious risk
of extradition he could face if he ventured outside of Kuwait, the court reasoned

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that there was not such a mutuality deficit that the district court should refrain
from deciding his motion.

Id. at 413–14.

The Seventh Circuit concluded by

commenting that, “[o]utside of the core fugitive disentitlement context, the Supreme
Court has indicated that disentitlement is ‘too blunt an instrument’ to redress the
indignity of a defendant’s absence.” Id. at 414 (quoting Degen, 517 U.S. at 828). 3
While Hijazi identifies circumstances in which a court should be wary of
invoking the fugitive disentitlement doctrine, the Seventh Circuit has more recently
discussed circumstances in which it may be proper to do so. First, in Bokhari, the
defendant faced an eight-count indictment for an illegal scheme he perpetrated
while living in the United States. 757 F.3d at 666. He took refuge in Pakistan,
where he was also a citizen. Id. The United States requested extradition, but the
governments were unable to reach an agreement. Id. at 666–67. United States
officials therefore secured a notice through Interpol instructing all member states to
arrest Bokhari if he entered their jurisdiction. Id. at 667. And Bokhari, through his
attorneys, filed a motion to dismiss the indictment in the United States. Id. The
district court denied the motion, reasoning that the fugitive disentitlement doctrine
precluded the relief he sought. Id. at 667–68.
The Seventh Circuit affirmed.

It began by discussing “whether Bokhari

meets the legal definition of a fugitive.” Id. at 672. Bokhari argued that he was not
a fugitive because he left the United States a few years prior to the indictment,

The court did not elaborate on what it considered the “core fugitive disentitlement
context,” but presumably, it meant to refer to instances in which a convicted criminal
defendant flees after appealing his conviction.

3

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citing Hijazi.

Id.

The government countered by noting that, unlike in Hijazi,

Bokhari had lived in the United States for a decade, and his prosecution concerned
actions he was alleged to have taken here. Id.
In discussing the issue, the Seventh Circuit found the government’s position
“persuasive[]” and favorably cited authorities establishing a broad definition of
fugitive, including one that would “‘require only proof of absence from the indicting
jurisdiction regardless of the defendant’s intent.’”

Id. (quoting United States v.

Marshall, 856 F.3d 896, 898 (7th Cir. 1988)). But the court stopped there, noting
that “the term ‘fugitive’ may take on subtly different meanings as it is used in a
variety of legal contexts,” and declined to rule on the fugitive disentitlement issue.
Id.

The court then proceeded to deny Bokhari’s motion on the merits.

In a

noteworthy footnote, however, the court clarified that its opinion should “in [no] way
suggest that the district court [ ] err[ed] in finding that Bokhari was a fugitive, or
that it abused its discretion in applying the doctrine to him.”

Id. at 673 n.7.

Indeed, the court cited with approval the district court’s statement that “[t]he
fugitive disentitlement doctrine stands for the proposition that those who flee from
judicial process may not benefit from it,” observing that Bokhari would not benefit
from filing his motion (consistent with the core purpose of the fugitive
disentitlement doctrine) because the motion was being denied.

Id. (internal

quotation marks and citation omitted).
In a second decision post-Hijazi, the Seventh Circuit envisioned a similarly
broad definition of fugitive. In re Kashamu, 769 F.3d 490 (7th Cir. 2014), concerned

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a defendant living in Nigeria that refused to appear to face criminal charges in the
United States and resisted extradition proceedings in the United Kingdom. Id. at
492.

He filed a motion to dismiss the indictment on personal jurisdiction and

speedy-trial grounds. Id. The court rejected the merits of his challenge. In dicta,
however, it stated,
It’s true that Kashamu didn’t literally flee the United States, since he
was never in the United States. But he knew he was under indictment
in this country, yet rather than come here to fight the validity of the
government’s charges, he fought tooth and nail (and successfully) to
prevent his being extradited from the United Kingdom to the United
States. He not only was functionally a fugitive . . . he deliberately
forewent the opportunity for a speedy trial.
Id. at 493 (internal citations omitted).

The court advised that “[i]f [Kashamu]

wants to fight the charges, he has only to fly from Lagos to Chicago; there are loads
of reasonably priced flights.” Id. at 494.
Based on these authorities, and in light of the principles undergirding the
doctrine, the Court is persuaded that the elements of the fugitive disentitlement
doctrine are met in this case. All three principles that the Supreme Court discussed
in Degen—enforcement and mutuality, redressing the indignity of absence, and
encouraging voluntary surrender—are implicated here.

As long as Vaulin is in

Poland, he is not within the Court’s reach. And, as far as the Court is aware, he is
actively resisting extradition efforts. His attorneys represented at the most recent
status hearing that there is a “real possibility” that he will agree to appear here, but
also indicated that he is actively appealing the Polish courts’ decision to extradite

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him, a process which could take years. Thus, insofar as Vaulin is interested in
participating here, he appears willing to do so only from a safe distance.
As for the second and third principles, Vaulin should not reap the benefit of
purposefully evasive behavior, and issuing a ruling in these circumstances could
encourage such behavior, rather than voluntary surrender.

Denying Vaulin’s

motion without prejudice to renewal upon appearing before this Court is an
appropriate way of honoring these principles, and is not “an excessive response to
the concerns here advanced.” Degen, 517 U.S. at 829; see also Ortega-Rodriguez v.
United States, 507 U.S. 234, 246 (1993) (“[F]ugitivity while a case is pending before
a district court, like other contempts of court, is best sanctioned by the district court
itself.”).
Furthermore, the Court is persuaded that invocation of the doctrine is
warranted under the Seventh Circuit’s fugitive disentitlement doctrine precedents.
Vaulin meets the broad definition of a fugitive that the Seventh Circuit has
endorsed in Bokhari and Kashamu. Vaulin knows of the charges against him and
actively resists appearing here. Bokhari, 757 F.3d at 672. Rather than appear, he
fights extradition from Poland “tooth and nail.” Kashamu, 769 F.3d at 493. Unlike
in Hijazi, on which Vaulin principally relies, he is not committed to the authority of
a country that refuses to extradite him. In fact, the authorities in Poland have
expended considerable efforts to do so. Vaulin could appear here if he wishes, but
has chosen not to.

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Moreover, the extraterritoriality concerns that the Seventh Circuit expressed
in Hijazi are not present in Vaulin’s case. As explained in greater detail below,
notwithstanding Vaulin’s insistence that this prosecution has nothing to do with
conduct in the United States, the indictment repeatedly alleges conduct that
occurred in the United States. Thus, the question of extraterritorial application in
this case is not “importan[t] and delica[te],” Hijazi, 589 F.3d at 408, but ancillary
and straightforward. Vaulin is a fugitive disentitled to the redress he seeks.
That said, the Court is mindful of the admonition by the Supreme Court and
Seventh Circuit that district courts should apply the fugitive disentitlement
doctrine with caution. Degen, 517 U.S. at 828; Hijazi, 589 F.3d at 414. Accordingly,
the Court will follow the approach taken by the Seventh Circuit in Bokhari and
proceed to consider the merits of Vaulin’s motion, pausing only to note that, because
the motion lacks merit, Vaulin “will receive no benefit from filing his motion to
dismiss the indictment.” Bokhari, 757 F.3d at 672–73 & n.7.
B.

Sufficiency of the Indictment

Vaulin raises a number of challenges to the sufficiency of the indictment.
First, as noted above, he contests the sufficiency of the indictment’s allegations of
criminal copyright infringement within the United States and contends that he
cannot be prosecuted under the Copyright Act for any extraterritorial infringement.
Next, Vaulin challenges the Government’s core theory of criminal copyright
infringement, maintaining that his conduct is not actionable under the Copyright
Act. Specifically, he argues that the torrent files he is accused of producing and

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hosting are not content protected under the Act, that he cannot be prosecuted for
secondary infringement of the protected content referenced in the indictment, and
that, if he can, the statutes he is charged with violating are unconstitutionally
vague.

Finally, Vaulin asserts that, assuming the validity of the Government’s

theory arguendo, the indictment’s allegations nevertheless fail to satisfy the
specificity required by Rule 7(c)(1). The Court will address each of these arguments
in turn.
1.

Location of the Underlying Criminal Conduct

Vaulin first argues that the indictment fails to adequately allege criminal
infringement occurring in the United States, and therefore asserts that the
indictment improperly seeks to inculpate him for extraterritorial infringement that
cannot be prosecuted under the Copyright Act. Def.’s Mem. at 15–16. 4 Vaulin is
correct that, as a general matter, the Copyright Act does not apply extraterritorially
to reach acts of infringement that occur entirely abroad. E.g., Subafilms, Ltd. v.
MGM-Pathe Commc’ns Co., 24 F.3d 1088, 1094, 1098 (9th Cir. 1994). But the core
theory underlying the indictment is that Vaulin aided, abetted, and conspired with
users of his network to commit criminal copyright infringement in the United

At oral argument, the Government directed the Court to authority holding that, in
the civil context, extraterritorial limitations on the Copyright Act are properly treated as an
element of a claim under the Act, and not as limiting federal courts’ subject matter
jurisdiction. Oral Arg. Tr. 34:1–8; see Litecubes, LLC v. N. Light Prod., Inc., 523 F.3d 1353,
1368 (Fed. Cir. 2008). Vaulin appears to agree that the Government at this point need only
allege, rather than prove, that infringement occurred domestically. Def.’s Mem. at 15
(arguing that the indictment is defective because it “fail[s] to allege actual infringements in
the territory of the United States”); see also Oral Arg. Tr. at 17:24–18:5.
4

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States. 5 The first paragraph of the indictment, which is incorporated throughout,
alleges that “[m]illions” of Vaulin’s users resided in the United States. Indictment,
Count 1 ¶ 1(b). The indictment goes on to allege that these users “uploaded” and
“download[ed]” content, id., Count 1 ¶ 5, and “obtain[ed] [ ] desired infringed
copyrighted content,” id., Count 1 ¶ 10. When viewed in a light most favorable to
the Government, as the Court must do at this preliminary stage, the indictment
alleges acts of domestic infringement.
Moreover, in setting out the conspiracy count, the indictment further states
that 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 files,” id., Count 1 ¶ 4, that
KAT used a “network of computer servers from around the world, including
computer servers located in Chicago, Illinois,” id., Count 1 ¶ 18, and that various
overt acts in furtherance of the conspiracy occurred in the United States, e.g., id.,
Count 1 ¶¶ 26(b), 26(e), 26(g), 26(k), 26(n)–(o).

The aiding and abetting counts

similarly allege that acts of infringement and acts of aiding and abetting
infringement occurred in this district. Id., Count 2 ¶ 2; id., Counts 3–12 ¶ 2. At
this stage, the indictment’s allegations of wrongdoing occurring in the United States
are sufficient, and Vaulin’s motion to dismiss the indictment on this basis is denied.

As a general matter, “the extraterritorial reach of an ancillary offense like aiding
and abetting or conspiracy is coterminous with that of the underlying criminal statute.”
United States v. Ali, 718 F.3d 929, 939 (D.C. Cir. 2013).
5

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2.

Core Theory of Infringement

Next, Vaulin challenges the Government’s underlying theory of criminal
copyright infringement.

He argues that the indictment (1) improperly charges

criminal infringement of torrent files; (2) predicates criminal liability based on
inapplicable theories of secondary liability viable only in the civil context; and
(3) seeks to apply the statutes at issue in a manner that is unconstitutionally vague.
i.

Conduct Related to Torrent Files

Vaulin first contends that, because torrent files are not themselves protected
content under the Copyright Act, there can be no criminal liability associated with
downloading or distributing them. Def.’s Mem. at 1, 7–9. This argument, however,
misunderstands the indictment. The indictment is not concerned with the mere
downloading or distribution of torrent files.

Granted, the indictment describes

these files and charges Vaulin with operating a website dedicated to hosting and
distributing them. Id., Count 1, ¶¶ 1(a), 4. But the protected content alleged to
have been infringed in the indictment is a number of movies and other copyrightprotected media that users of Vaulin’s network purportedly downloaded and
distributed without authorization from the copyright holders. Id., Count 1, ¶¶ 3,
26(j), 26(v); id., Count 2 ¶ 2; id., Counts 3–12 ¶ 2. The indictment describes the
torrent files merely as a means of obtaining the copyrighted movies and other
media.
Vaulin also makes the related argument that, because torrent files
themselves are not protected content under the Copyright Act, an agreement to

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download and distribute them cannot constitute a conspiracy to commit criminal
copyright infringement, as charged in Count 1 of the indictment. Reply at 13–14,
ECF No. 35. Again, this argument misconstrues the indictment. Count 1 of the
indictment alleges that Vaulin and his co-defendants “made available and caused
others to make available without authorization vast amounts of copyrighted content
on KAT . . . by collecting and uploading torrent files to KAT, and soliciting and
inducing KAT’s registered users to upload torrent files to KAT.” Id., Count 1 ¶ 4. It
is true that this allegation alone would not suffice to establish criminal conspiracy,
given that torrent files are not protected content under the Copyright Act. But
Count 1 does not stop there. The indictment explains that torrent files were a
means of “allowing KAT users to easily browse, locate, and obtain their desired
infringed copyrighted content,” i.e., movies to which the files related. Id., Count 1,
¶ 10. Thus, Count 1 alleges that Vaulin and his co-defendants conspired to not only
upload torrent files, but to do so in order to further acts of criminal copyright
infringement by KAT’s users.
What is more, Count 1 charges not only Vaulin and his co-defendants, but
“others known and unknown” with conspiring to commit the alleged acts of
infringement. Id., Count 1 ¶ 2. Thus, the indictment is fairly construed as alleging
an agreement between Vaulin and KAT’s users to download and distribute
infringed copyrighted content by using torrent files. See Oral Arg. Tr. at 39:4–7.
Finally, in addition to alleging a conspiracy to commit copyright infringement based
on conduct related to torrent files, the indictment also alleges a conspiracy based on

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Vaulin and his co-defendants’ distribution of copyrighted content through direct
download websites. Indictment, Count 1 ¶¶ 21–25. Thus, the conspiracy alleged in
the indictment goes far beyond merely uploading and distributing torrent files, and
Vaulin’s motion to dismiss the indictment on this basis is denied. 6
ii.

Liability for Criminal Copyright Infringement

Vaulin further contends that the indictment seeks to charge Vaulin with
secondary liability for criminal copyright infringement, which is only valid in the
civil context. Def.’s Mem. at 9–12. In the civil context, “[o]ne infringes [a copyright]
contributorily by intentionally inducing or encouraging direct infringement . . . and
infringes vicariously by profiting from direct infringement while declining to
exercise a right to stop or limit it.” Metro-Goldwyn-Mayer Studios Inc. v. Grokster,
Ltd., 545 U.S. 913, 930 (2005).

Importantly, contributory and vicarious

infringement are common law principles, id., and are not theories of liability
enumerated in the Copyright Act. For this reason, Vaulin argues that there can be
no liability for criminal contributory and vicarious infringement. He points out that
federal crimes are “solely creatures of statute,” Liparota v. United States, 471 U.S.
419, 424 (1985), thereby precluding importation of common law secondary liability
principles.

He also references the Supreme Court’s acknowledgement of “the

wisdom of leaving it to the legislature to define crime and prescribe penalties” for
At one point, Vaulin contends that the indictment is deficient because, to the extent
that it alleges a violation of 17 U.S.C. §506(a)(1)(A), it does not allege with sufficient
specificity that Vaulin knowingly and willfully conspired with or aided and abetted KAT
users’ efforts to commit infringement “for the purpose of commercial advantage or gain.”
But the Court finds that the allegations in the indictment satisfy Rule 7(c)(1) for this
purpose, particularly when they are viewed in the light most favorable to the government.
6

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criminal copyright infringement.

Dowling v. United States, 473 U.S. 207, 228

(1985). And he invokes the rule of lenity, which provides that ambiguity in the
scope of a criminal statute should be resolved in favor of the defendant.

E.g.,

Skilling v. United States, 561 U.S. 358, 410–11 (2010).
The Government takes no issue with this line of reasoning. But, as should be
clear by now, the indictment does not charge Vaulin with common law secondary
liability that the Government seeks to import into 17 U.S.C. § 506. 7 Rather, the
indictment relies on the text of the congressionally enacted conspiracy and aiding
and abetting statutes, 18 U.S.C. § 371 and 18 U.S.C. § 2. The first criminalizes “two
or more persons conspir[ing] [ ] to commit any offense against the United States.” 18
U.S.C. § 371 (emphasis added).

The second applies to “[w]hoever commits an

offense against the United States or aids, abets, counsels, commands, induces or
procures its commission.” 18 U.S.C. § 2 (emphasis added); see United States v. PinoPerez, 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 [18 U.S.C.
§ 2(a)] attaches automatically. The question is not whether [18 U.S.C. § 2(a)] is
applicable—it always is.”). Thus, the indictment charges Vaulin not with crimes
Although the indictment is not premised on common law theories of secondary
liability, Vaulin raises an issue as to whether KAT’s torrent network is “capable of
substantial noninfringing uses,” a defense to contributory infringement in the civil context.
Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 442 (1984). While it is true
that, “[i]n order to understand the meaning of criminal copyright infringement,” courts
have “resort[ed] to the civil law of copyright,” United States v. Cross, 816 F.2d 297, 303 (7th
Cir. 1987), it is not clear that the defense would apply here, given important differences
between contributory infringement and criminal liability under the conspiracy and aiding
and abetting statutes, as discussed below. But, even if the defense were to apply, the
defense is unavailable where there is evidence of “statements or actions directed to
promoting infringement,” as alleged here. Grokster, 545 U.S. at 935.
7

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based upon common law theories, but for conduct made unlawful under
unambiguous statutes.
Vaulin nevertheless argues that these statutes (or, at least, 18 U.S.C. § 2)8 do
not apply to the present version of the Copyright Act. Reply at 3, 7. He points out
that the 1909 version of the Copyright Act contained language expressly
criminalizing aiding and abetting copyright infringement, but that language was
removed from the present version of the Act enacted in 1976. Copyright Act, ch.
320, § 28, 35 Stat. 1075, 1082 (1909), amended by 17 U.S.C. § 506.

From this,

Vaulin concludes that, because Congress removed this language from the Copyright
Act, there can be no criminal liability for aiding and abetting infringement.
This argument, however, misses the mark.

When Congress amended the

Copyright Act in 1976, 18 U.S.C. § 2—which, by its terms, applies to every criminal
offense—was in force.

For this reason, there was no need to include language

within the Copyright Act itself that criminalized aiding and abetting criminal
infringement. Doing so would have been redundant. Without any indication from
the text of 17 U.S.C. § 506 that 18 U.S.C. § 2 should not apply, the Court must
conclude that it does. Pino-Perez, 870 F.2d at 1233. Copyright scholars to have
considered the issue concur in this reasoning.

See, e.g., James Lincoln Young,

Criminal Copyright Infringement and a Step Beyond, 30 Copyright L. Symp.
(ASCAP) 157, 169 (1980) (observing that, in light of 18 U.S.C. § 2, including aiding
and abetting language directly in 17 U.S.C. § 506 “would have been merely
Vaulin offers no argument as to why 18 U.S.C. § 371 should not apply, and the Court
sees no reason it should not.

8

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superfluous”); accord 5 Nimmer on Copyright § 15.01 (2017) (“Persons who
knowingly and willfully aid or abet copyright infringement are subject to the same
criminal penalties as apply to the principal.”); Benton Martin & Jeremiah Newhall,
Criminal Copyright Enforcement Against Filesharing Services, 15 N.C. J. L. & Tech.
101, 108 (2013); Note, The Criminalization of Copyright Infringement in the Digital
Era, 112 Harv. L. Rev. 1705, 1709 n.39. 9 And, while no court appears to have
considered this precise issue, numerous courts have permitted indictments to
proceed or have upheld convictions under 18 U.S.C. § 2 for aiding and abetting
violations of 17 U.S.C. § 506. E.g., United States v. Frison, 825 F.3d 437, 438 (8th
Cir. 2016), cert. denied, 137 S. Ct. 520 (2016); United States v. Stevens, 543 F. Supp.
929, 948–49 (N.D. Ill. 1982); see also United States v. Dove, No. 2:07CR00015, 2008
WL 3979467, at *3 (W.D. Va. Aug. 25, 2008) (sustaining conviction where court
instructed jury on aiding and abetting a violation of 17 U.S.C. § 506). 10

Vaulin cites one scholar’s assertion that “countering what had been a trend of
expansion in the area of criminal sanctions, the Copyright Act of 1976 eliminated the
provisions for aiding and abetting.” Irina D. Manta, The Puzzle of Criminal Sanctions for
Intellectual Property Infringement, 24 Harv. J.L. & Tech. 469, 481 (2011). But this article
does not mention 18 U.S.C. § 2, let alone explain why it would not apply in lieu of the
provisions in the 1909 Act.
9

In support of his position, Vaulin relies upon United States v. LaMacchia, 871 F.
Supp. 535 (D. Mass. 1994), which states that “[i]n 1976, Congress revamped the Copyright
Act by eliminating the crime of aiding and abetting copyright infringement.” Id. at 539.
LaMacchia, however, did not involve a prosecution for aiding and abetting copyright
infringement, makes no mention of 18 U.S.C. § 2, and provides no analysis as to why it
would not apply in lieu of the provisions in the 1909 Act. Accordingly, the Court does not
find it very instructive to the issue at hand.
10

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Vaulin also expresses concern that the Government’s theory could expose
search engines, such as Google, to criminal liability. He points out that a Google
search readily returns links to torrent sites. Reply at 11. Given the limited nature
of the present inquiry—whether the indictment in this case satisfies Rule 7(c)(1)—
the Court is hesitant to speculate as to whether and under what circumstances
Google or any other search engine operators might be charged with aiding and
abetting criminal copyright infringement. Nevertheless, the Court makes two brief
observations. First, as the Government noted at oral argument, “Google doesn’t
solicit and reward others for uploading torrent files for copyrighted media,” as
Vaulin is charged with doing in this case. Oral Arg Tr. at 40:5–6. And, if Google
were to engage in such conduct, at least one court has suggested that Google might
be civilly liable for contributory infringement under certain circumstances.

See

Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1172 (9th Cir. 2007) (“Google
could be held contributorily liable if it had knowledge that infringing [works] were
available using its search engine, could take simple measures to prevent further
damage to [plaintiff’s] copyrighted works, and failed to take such steps.”).

For

present purposes, though, the Court need not decide whether and when a search
engine operator might engage in conduct sufficient to constitute aiding and abetting
criminal copyright infringement. The issue here is whether 18 U.S.C. § 2 applies to
17 U.S.C. § 506. The Court is persuaded that it does. 11
Vaulin also questions whether the indictment, if permitted to stand, will “improperly
criminalize video streaming.” Reply at 9 (citing Flava Works v. Gunther, 689 F.3d 754 (7th
Cir. 2012)). The primary acts of infringement on which the indictment is predicated,
however, are (1) the unauthorized “reproduction and distribution” of copyrighted works,
11

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iii.

Void-for-Vagueness Challenge

Finally, Vaulin argues that, if 17 U.S.C. § 506, 18 U.S.C. § 2, and 18 U.S.C.
§ 371 permit prosecution for conspiring to commit or aiding and abetting criminal
copyright infringement, the statutes are void for vagueness. To satisfy the due
process concerns underlying the void-for-vagueness doctrine, “‘a penal statute
[must] define the criminal offense (1) with sufficient definiteness that ordinary
people can understand what conduct is prohibited and (2) in a manner that does not
encourage arbitrary and discriminatory enforcement.’” Skilling, 561 U.S. at 402–03
(alteration in original) (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1983)).
Here, where First Amendment concerns are not at issue, the question is “whether a
statute is vague as applied to the particular facts at issue.”

See Holder v.

Humanitarian Law Project, 561 U.S. 1, 18 (2010). Thus, the relevant question is
whether Vaulin was “on notice that [his] conduct was illegal.” See United States v.
Calimlim, 538 F.3d 706, 710–11 (7th Cir. 2008).
Here, the statutes at issue are sufficiently definite such that ordinary people
can understand what conduct is prohibited.

17 U.S.C. § 506(a) criminalizes

“willful[] infringe[ment],” and specifies, for purposes of 17 U.S.C. § 506(a)(1)(B), that

and (2) the unauthorized “distribution . . . by making [ ] available” copyrighted works, both
of which are acts of infringement identified in 17 U.S.C. § 506. See, e.g., Indictment, Count
1 ¶ 2. Thus, the principal infringers in this case (KAT’s users) are alleged to have
reproduced and distributed copyrighted works, rather than merely streamed them, as
viewers did in Flava. 689 F.3d at 756–57. Indeed, Flava made clear that uploading and
downloading copies of works, as opposed to mere streaming, constitutes copyright
infringement. Id. And, as the court also noted in Flava, websites that encourage, invite,
and induce others to distribute copies of copyrighted works may be civilly liable for
contributory infringement. Id. at 758–59.

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this infringement occurs by “the reproduction or distribution” of “copies or
phonorecords” of “copyrighted works.” 17 U.S.C. § 506(a)(1)(A)–(B). In the context
of 17 U.S.C. § 506(a)(1)(C), the statute plainly states that infringement occurs “by
the distribution of a work being prepared for commercial distribution, by making it
available on a computer network accessible to members of the public, if such person
knew or should have known that the work was intended for commercial
distribution.” 17 U.S.C. § 506(a)(1)(C). Here, the indictment charges that Vaulin
and his co-defendants conspired and aided abetted precisely this activity.
Moreover, based on the allegations in the indictment, Vaulin’s own actions
evidenced his understanding that his conduct was illegal.

In particular, the

indictment alleges that Vaulin and his co-defendants “changed and caused others to
change the website domain name for KAT several times . . . in part to avoid and
circumvent court orders that sought to block users’ access to KAT because of KAT’s
copyright infringement.” Indictment, Count 1 ¶ 16. It further alleges that Vaulin
and his co-defendants operated KAT and related websites “through a Ukrainianbased company called ‘Cryptoneat’ in order to hide their operations.” Id., Count 1
¶ 24. Assuming the truth of these allegations, Vaulin knew or must have known
that his activities could subject him to criminal prosecution. See Frison, 825 F.3d at
441–47 (rejecting a void-for-vagueness challenge where defendant was convicted of
conspiring to violate and aiding and abetting violations of 17 U.S.C. § 506, and had
actual notice that his conduct was unlawful).

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Nor does the indictment seek to enforce the statutes at issue arbitrarily or in
a discriminatory fashion. A statute is susceptible to discriminatory or arbitrary
enforcement where “it impermissibly delegates to law enforcement the authority to
arrest and prosecute on an ad hoc and subjective basis.” Bell v. Keating, 697 F.3d
445, 462 (7th Cir. 2012) (internal quotation marks and citation omitted). 17 U.S.C.
§ 506, however, specifically delineates the willful infringement to which it applies.
And the fact that Vaulin is charged with conspiracy and aiding and abetting does
not indicate otherwise. United States v. Cueto, 151 F.3d 620, 636 (7th Cir. 1998)
(rejecting a void-for-vagueness challenge to 18 U.S.C. § 371 where “the indictment
specifically describe[d] the conduct charged” and “identifie[d] [defendant’s] specific
conduct which furthered the conspiracy”); United States v. Morrison, 521 F. Supp.
2d 246, 258 (E.D.N.Y. 2007) (observing that “the scienter requirement of 18 U.S.C.
§ 2 narrows the scope of the prohibited conduct and in so doing, limits prosecutorial
discretion,” and therefore rejecting a void-for-vagueness challenge), recons. on other
grounds, 706 F. Supp. 2d 304 (E.D.N.Y. 2010).

Here, Vaulin is charged with

conspiring and aiding abetting the willful unauthorized distribution and
downloading of copyrighted movies and other media. This is the very core of the
conduct proscribed under the Copyright Act.

See Frison, 825 F.3d at 446–47

(upholding a conviction for conspiring and aiding abetting copyright infringement
where the defendant “present[ed] no reason to believe the statutes at issue did not
clearly apply to him”).

The Court therefore rejects Vaulin’s void-for-vagueness

challenge.

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3.

Sufficiency of Indictment Under Rule 7(c)(1)

In addition to challenging the core theory underlying the indictment, Vaulin
maintains that, even accepting the validity of the theory arguendo, the indictment
fails to satisfy Rule 7(c)(1) in various respects.

First, he contends that the

indictment fails to identify a principal who has committed a violation of 17 U.S.C.
§ 506. It is not necessary, however, to identify a principal in an indictment charging
aiding and abetting under 18 U.S.C. § 2. United States v. Somers, 950 F.2d 1279,
1283 (7th Cir. 1991) (rejecting this argument as a basis to dismiss an indictment
because “in order to convict a defendant as an aider or abettor under [18 U.S.C.] § 2,
it has never been necessary to convict or even identify the principal, provided there
is sufficient evidence to establish the commission of the substantive offense”).
Moreover, aiding and abetting under 18 U.S.C. § 2 “‘need not be specifically
pleaded’” in an indictment, and “‘a defendant indicted for a substantive offense can
be convicted as an aider and abettor’ upon a proper demonstration of proof so long
as no unfair surprise results.” United States v. Galiffa, 734 F.2d 306, 312 (7th Cir.
1984) (quoting United States v. Tucker, 552 F.2d 202, 204 (7th Cir. 1977)).
Vaulin also takes issue with the sufficiency of the Government’s allegations
of aiding and abetting violations of 17 U.S.C. § 506. But the indictment satisfies
Rule 7(c)(1) in this regard. Counts 2 through 13 tracks the elements of 17 U.S.C.
§ 506, identify the movies that are the subject of the alleged acts of copyright
infringement and the dates on which the copyrights were infringed, and describe in
detail how Vaulin and his co-defendant aided and abetted the acts of infringement.

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Indictment, Count 1 ¶ 1; id., Counts 2–13. Of course, at trial, the Government will
have the burden of proving that acts of infringement occurred that violated 17
U.S.C. § 506. United States v. Motley, 940 F.2d 1079, 1081 (7th Cir. 1991) (“‘[I]t is
hornbook law that a defendant charged with aiding and abetting the commission of
a crime by another cannot be convicted in the absence of proof that the crime was
actually committed’” (quoting United States v. Ruffin, 613 F.2d 408, 412 (2d Cir.
1979)).). It will also have to prove that Vaulin acted with the same state of mind as
that required for the principal offense—i.e., willfulness. United States v. Valencia,
907 F.2d 671, 680 (7th Cir. 1990). At this stage, however, the Government need
only describe Vaulin’s actions so as to satisfy Rule 7(c)(1).

It has carried this

burden.
As part of this argument, Vaulin also suggests that liability under 17 U.S.C.
§ 506(a)(1)(C) requires actual dissemination of a copyrighted work, rather than
merely making the work available. 12 Def.’s Mem. at 14–15. He therefore contends
that the indictment’s allegations of making copyrighted media available, without
more, are insufficient.

This position, however, cannot be reconciled with the

statute’s text. It states, in relevant part:
Any person who willfully infringes a copyright shall be punished as
provided under [18 U.S.C. § 2319], if the infringement was
committed . . . by the distribution of a work being prepared for
commercial distribution, by making it available on a computer network
accessible to members of the public, if such person knew or should
have known that the work was intended for commercial distribution.
The issue is somewhat academic, or at least premature, because the Government
has suggested that it intends to put on evidence of actual downloads of movies made
possible by KAT’s torrent files. Oral Arg. Tr. at 31:12–14.
12

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17 U.S.C. § 506(a)(1)(C) (emphasis added). In interpreting this provision, the Court
must give its unambiguous terms their plain meaning. River Rd. Hotel Partners,
LLC v. Amalgamated Bank, 651 F.3d 642, 649 (7th Cir. 2011). The text of 17 U.S.C.
§ 506(a)(1)(C) plainly criminalizes willful copyright infringement in the form of
distributing a work “by making it available.”

Thus, one can violate 17 U.S.C.

§ 506(a)(1)(C) by making available a copyrighted work, even without disseminating
actual copies of it.
Vaulin seeks to evade the plain text of 17 U.S.C. § 506(a)(1)(C) by summoning
a debate that has long plagued civil copyright law. To wit, Section 106 of the Act
enumerates exclusive rights in copyrighted works, one of which is “to distribute
copies . . . of the copyrighted work.” 17 U.S.C. § 106(3). “Distribute,” however, is
not defined, and § 106(3) does not indicate whether liability can attach for making a
copyrighted work available.

Thus, courts are divided on how to interpret

“distribute” for purposes of 17 U.S.C. § 106(3).

Compare Hotaling v. Church of

Jesus Christ of Latter-Day Saints, 118 F.3d 199, 203 (4th Cir. 1997) (holding that
making available a copyrighted work to the public constitutes distribution), with
Perfect 10, 508 F.3d at 1162 (rejecting an argument that merely making available a
work constitutes distribution).
Whichever side one may chose in that debate, it is of no consequence to 17
U.S.C. § 506(a)(1)(C), which plainly envisions infringement of a commercial
copyrighted work by “making it available on a computer network accessible to
members of the public.” See Capitol Records, Inc. v. Thomas, 579 F. Supp. 2d 1210,
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1218 (D. Minn. 2008) (contrasting 17 U.S.C. § 106(3) with 17 U.S.C. § 506(a)(1)(C)
and concluding that “when Congress intends distribution to encompass making
available . . . it has demonstrated that it is quite capable of explicitly providing that
definition within the statute”); accord BMG Rights Mgmt. (US) LLC v. Cox
Commc’ns, Inc., 149 F. Supp. 3d 634, 668 (E.D. Va. 2015). 13 Accordingly, under the
plain meaning of 17 U.S.C. § 506(a)(1)(C), the indictment’s charges related to
making copyrighted works available can stand. 14
III.

Conclusion

For the foregoing reasons, Vaulin’s motion to dismiss the indictment [26] is
denied. A status hearing is set for August 24, 2017, at 9:30 a.m.
IT IS SO ORDERED.

ENTERED

8/4/17

__________________________________
John Z. Lee
United States District Judge

In support of his position, Vaulin presents In re Napster, Inc. Copyright Litigation,
377 F. Supp. 2d 796 (N.D. Cal. 2005). It is by no means clear, however, that the Napster
court believed proof of actual dissemination was required under 17 U.S.C. § 506(a)(1)(C). In
any event, insofar as Napster suggests that the plain language of 17 U.S.C. § 506(a)(1)(C)
requires proof of infringement other than by distributing “a work being prepared for
commercial distribution, by making it available on a computer network accessible to
member of the public,” the Court respectfully disagrees. The plain language of the statute
identifies such conduct as actionable under 17 U.S.C. § 506(a)(1)(C).
13

Had the Court dismissed the indictment’s charges relating to criminal copyright
infringement, Vaulin sought to dismiss the money laundering charges as well due to the
absence of underlying criminal activity. Def.’s Mem. at 16–17. Because the charges
relating to criminal copyright infringement stand, this request is also denied.
14

29