George Mason University Antonin Scalia Law School

Court Confirms the Obvious: Aiding and Abetting Criminal Copyright Infringement Is a Crime

Cross-posted from the Law Theories blog.

closeup of a circuit boardIn July of 2016, a criminal complaint was filed in the Northern District of Illinois alleging that Artem Vaulin of the Ukraine was the mastermind behind the popular torrent site, Kickass Torrents (KAT). At the time, KAT was one of the largest pirate sites in the world, with an estimated 50 million unique visitors each month. The complaint charged Vaulin with several crimes, including criminal copyright infringement. The district court issued an arrest warrant for Vaulin and a seizure warrant for the various KAT domain names. Less than two weeks later, Vaulin was arrested in Poland and the KAT website was under the government’s control.

The government then secured an indictment charging Vaulin with sixteen counts, including eleven counts of aiding and abetting criminal copyright infringement for distributing pre-release movies, including The Butler, Deadpool, and X-Men: Apocalypse.[1] There was also one aiding and abetting criminal copyright infringement count for reproducing and distributing “at least ten copies . . . of one or more copyrighted works which had a total retail value of more than $2,500” during “the 180 days leading up to and including July 8, 2016[.]”[2] Two months after the indictment was handed down, Vaulin filed a memorandum in support of his motion to dismiss that made a rather extraordinary claim: Aiding and abetting criminal copyright infringement is not a crime.

The twelve aiding and abetting criminal copyright infringement counts in the indictment all point to Section 2 of Title 18, the federal aiding and abetting statute. Section 2(a) provides: “Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” The idea behind Section 2(a) is simple: Those who help or encourage another to commit a federal crime, with the intent to aid in its commission, are guilty just as if they had committed the crime themselves. The statute does not create a separate crime; it instead permits someone to be convicted of a crime even if that person did not commit all of the acts constituting the elements of the crime. The indictment charged Vaulin with aiding and abetting because his KAT website merely provided torrent files that helped others to directly commit criminal copyright infringement.

Vaulin argued that “[s]econdary liability in civil copyright law is a common-law creation of judges, but it is not a federal crime enacted by Congress.” Incredibly, Vaulin never once mentioned Section 2(a)—the very statute that makes it a crime to aid and abet the commission of a federal crime and that he was charged with violating a dozen times over—in arguing that aiding and abetting criminal copyright infringement is not a crime. Vaulin also made no mention of binding Seventh Circuit precedent erasing any doubt that Section 2(a) applies to all federal crimes. In the late 1980s, a defendant challenged his aiding and abetting conviction on the ground that Section 2(a) did not apply. The Seventh Circuit, sitting en banc, rejected the argument: “The question is not whether section 2(a) is applicable—it always is.”[3]

The government’s brief in response to Vaulin’s motion to dismiss pointed out this obvious flaw: “And make no mistake, § 2 applies to all violations of the criminal code.” It noted that no court had ever held that aiding and abetting criminal copyright infringement is not a crime, even though “scores of defendants” had been charged and found guilty of that very crime. The government then rebutted the only plausible argument that aiding and abetting criminal copyright infringement is not a crime—despite the fact that Vaulin had not bothered to make it. Under the Copyright Act of 1909, Congress expressly included language criminalizing aiding and abetting criminal copyright infringement.[4] That language was removed in the Copyright Act of 1976, and the argument is that Congress thus decriminalized the act of aiding and abetting criminal copyright infringement.

At first blush, this argument makes some sense. Indeed, one district court suggested in dicta over two decades ago that “Congress revamped the Copyright Act by eliminating the crime of aiding and abetting copyright infringement.”[5] And one scholar recently posited that “the Copyright Act of 1976 eliminated the provisions for aiding and abetting introduced in 1909[.]”[6] Notably, neither the district court nor the scholar mentioned the federal aiding and abetting statute—Section 2(a)—and explained why it would not apply to criminal copyright infringement. Nor did they explain why nothing in the legislative history indicates that Congress intended to make criminal copyright infringement the one-and-only federal crime that people can aid and abet with impunity.

In context, the argument makes no sense. Why would Congress want to decriminalize aiding and abetting criminal copyright infringement, thus making it different from every other federal crime? And why would it make such a drastic change, reversing almost seven decades of precedent, yet say nothing in the legislative history? The trend since copyright infringement was first criminalized one century ago has been to expand both the conduct that constitutes criminal infringement and its sanctions. In the four decades since the 1976 Act was enacted, Congress has systematically enlarged the law of criminal copyright infringement.[7] Why would Congress work so diligently to broaden criminal copyright infringement while at the same time make it the only crime in the entire U.S. Code that one can aid and abet without liability?

As the government noted in its brief, numerous scholars—as well as the venerable Nimmer on Copyright treatise—have concluded that aiding and abetting does apply to criminal copyright infringement.[8] Congress removed the aiding and abetting language with the 1976 Act because it was redundant with Section 2(a). Congress did not make an enormous change to criminal copyright law and then neglect to mention it in the legislative history; Congress removed surplusage and then said nothing because the redundancy was self-evident and unremarkable. Indeed, as Deputy Assistant Attorney General Irwin Goldbloom reported to Congress in 1975: “The provision . . . for aiders and abettors has been removed, but these individuals will be liable to prosecution under 18 U.S.C. 2.”

In his brief replying to the government’s brief, Vaulin finally made the argument—in all-bolded text, no less—that the government had already rebutted: “But aiding and abetting was removed from the Copyright Act by Congress in 1976 thereby eliminating the crime.” Overemphasis notwithstanding, Vaulin’s brief yet again failed to mention Section 2(a), the very aiding and abetting statute he again insisted does not exist. Instead, Vaulin engaged in hand-waving about “inventing new crimes” and the “rule of lenity,” apparently in the hope that the district court would not notice the glaring omission. Curiously, Vaulin even cited the DOJ’s Prosecuting Intellectual Property Crimes manual, despite its hot tip to federal prosecutors that they “may, for strategic reasons, wish to bring accessory charges, such as aiding-and-abetting or inducement, 18 U.S.C. § 2[.]”

Needless to say, District Judge John Z. Lee spent little time rejecting Vaulin’s argument that the crime he had been charged with twelve times over does not exist. In fact, Judge Lee did not need to reach the issue at all since he had already found that Vaulin’s motion could be dismissed under the fugitive disentitlement doctrine. To Vaulin’s claim that secondary liability for copyright infringement only exists in the civil law context, Judge Lee noted that “the indictment does not charge Vaulin with common law secondary liability” and pointed to Section 2(a). To Vaulin’s claim that Congress intended to decriminalize aiding and abetting, Judge Lee stated that Section 2(a) “applies to every criminal offense” and that “there was no need to include language in the Copyright Act itself” criminalizing “aiding and abetting criminal infringement” since it “would have been redundant.”

Vaulin’s self-serving—and ultimately losing—argument that the crime of aiding and abetting criminal copyright infringement disappeared four decades ago despite nobody noticing until now aside, this case raises some interesting questions. The simple fact is that there is very little case law applying criminal copyright law in the internet context, much less cases turning on an aiding and abetting theory. However, what is uninteresting is the fact that aiding and abetting criminal copyright infringement is a crime. It is absurd to think that criminal copyright infringement is the one crime that Congress wants people to be free to aid and abet.

[1] The indictment specified that each count is “[i]n violation of Title 17, United States Code, Section 506(a)(1)(C) and Title 18, United States Code, Sections 2319(d)(1) and 2.” Section 506(a)(1)(C) makes criminal “willfully” infringing a copyright if 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.” Section 2319(d)(1) establishes the crime as a felony, punishable by up to three years imprisonment and a fine.

[2] The indictment specified that this count is “[i]n violation of Title 17, United States Code, Section 506(a)(1)(A) and Title 18, United States Code, Sections 2319(b)(1) and 2.” Section 506(a)(1)(A) makes criminal “willfully” infringing a copyright if committed “for purposes of commercial advantage or private financial gain[.]” Section 2319(b)(1) establishes the crime as a felony, punishable by up to five years imprisonment and a fine.

[3] United States v. Pino-Perez, 870 F.2d 1230, 1233 (7th Cir. 1989).

[4] Section 28 provided: “[A]ny person who willfully and for profit shall infringe any copyright secured by this Act, or who shall knowingly and willfully aid or abet such infringement, shall be deemed guilty of a misdemeanor[.]”

[5] United States v. LaMacchia, 871 F. Supp. 535, 539 (D. Mass. 1994).

[6] Irina D. Manta, The Puzzle of Criminal Sanctions for Intellectual Property Infringement, 24 Harv. J.L. & Tech. 469, 481 (2011); see also Mary Jane Saunders, Criminal Copyright Infringement and the Copyright Felony Act, 71 Denv. U. L. Rev. 671, 674 (1994) (“The 1976 general revision to the Copyright Act continued the offense of criminal copyright infringement, but eliminated the crime of aiding and abetting infringement.”).

[7] See, e.g., Piracy and Counterfeiting Amendments Act of 1982, Pub. L. No. 97-180, 96 Stat. 91 (1982); Sentencing Reform Act of 1984, Pub. L. No. 98-473, 98 Stat. 1987 (1984); Copyright Felony Act of 1992, Pub. L. No. 102-561, 106 Stat. 4233 (1992); Anticounterfeiting Consumer Protection Act of 1996, Pub. L. No. 104-153, 110 Stat. 1386 (1996); No Electronic Theft (NET) Act of 1997, Pub. L. No. 105-147, 111 Stat. 2678 (1997); Digital Theft Deterrence and Copyright Damages Improvement Act of 1999, Pub. L. No. 106-160, 113 Stat. 1774 (1999); Artists’ Rights and Theft Prevention (ART) Act of 2005, Pub. L. No. 109-9, 119 Stat. 218 (2005); Prioritizing Resources and Organization for Intellectual Property (PRO IP) Act of 2008, Pub. L. No 110-403, 122 Stat. 4256 (2008).

[8] See, e.g., 5 Nimmer on Copyright § 15.01[A][2] (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) (“Aiding and abetting criminal copyright remains a crime under § 2(a).”); James Lincoln Young, Criminal Copyright Infringement and a Step Beyond: 17 U .S.C. § 506 (1976), 60 Neb. L. Rev. 114, 124 (1981) (“The continued inclusion of such a provision in the new section 506(a) would have been merely superfluous[.]”); Note, 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.”).