The U.S. government has responded to the request to dismiss the criminal indictment against the alleged operator of KickassTorrents. According to United States Attorney Zachary Fardon, the defense is downplaying the significance of “torrent” sites, which are more akin to flea markets for infringing movies, TV shows, games, music, and software.

Last month the legal defense team of alleged KickassTorrents owner Artem Vaulin asked the Illinois District Court to dismiss the criminal indictment against their client.

The fundamental flaw of the case, according to the defense, is that torrent files themselves are not copyrighted content. In addition, it was argued that the secondary copyright infringement claims would fail as these are non-existent under criminal law.

A few days ago United States Attorney Zachary Fardon submitted a response to the request. According to the Government, torrent sites are not merely search engines and are more harmful than the defense makes them seem.

“First, the defendant downplays the significance of ‘torrent’ sites like the defendant’s,” Fardon notes.

The U.S. Attorney explains that KAT specialized in indexing torrent files that pointed to copyright infringing content including movies and music, likening it to a pirate flea market.

“These indexed files enabled users to obtain copyrighted content from other users, including from the defendant’s own servers. KAT therefore functioned like a (lucrative) flea market for infringing movies, television shows, video games, music, and computer software.”

In their defense, KAT’s lawyers stressed that the alleged operator never touched any of the infringing content himself. However, the U.S. argues that this doesn’t matter, as the conspiracy actively helped others to commit crimes.

The U.S. Attorney equates KAT’s alleged owner to a drug dealer, who can be criminally liable as well, even if he never touched any drugs.

“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,” Fardon adds.

Similarly, the U.S. argues that KAT was not just a search engine which provided hyperlinks as the defense claimed. Fardon highlights that the site had several features through which copyright infringement was allegedly promoted or encouraged.

“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.”

Also, the U.S. Attorney disputes the notion that the defendant isn’t guilty of criminal copyright infringement because “secondary” copyright infringement doesn’t exist under criminal law.

This argument is central to the defense in this case as well as the Megaupload prosecution. However, according to U.S. Attorney Fardon it falls flat.

According to the U.S. Government there is no distinction between “direct” and “secondary” copyright infringement, for defendants that are charged with conspiracy to commit copyright infringement.

As long as the defendant conspired to assist users of the site in criminal actions, they can be held liable.

“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 co-defendants may be charged with conspiring with and aiding and abetting those users.

“Nothing about the defendant’s use of BitTorrent technology to carry out his crime makes him categorically above the law,” Fardon adds.

The U.S. Government asks the federal court to deny the motion to dismiss and let the case run its course. If the defense wants to challenge the sufficiency of the evidence, it should do so in a jury trial.

It is now up the court to decide how to move forward but given the gravity of the case, it’s not expected to end anytime soon. The U.S. Attorney’s full response is available here (pdf).