Permitted Third Party Distributors Turned Criminal Infringers?: Applanet Defendant Plays Hardball with the Government

Appbucket, Applanet, and related services, until taken down by the FBI, were alleged to be “third part[y] . . . websites for the distribution of Android apps.”  This was also considered by the Appbucket’s operator’s defense to be in good faith, considering that Google permitted such distribution, whereas Apple does not (Apple runs the only store for its apps).  Regardless, federal prosecutors proceeded with a criminal case against the alleged infringers, exceeding the option of a civil suit for damages.  According to the government, “such prosecutions are needed to protect legitimate app developers.”
Interestingly, the legal team for the 19-year-old man who started Applanet, Aaron Buckley, is trying to play offensive hardball against the government’s prosecution of their client.  Attorney Rain Minns has been joined in the case by Antonio Ponvert III, a civil rights lawyer who is interested in exploring the civil rights and First Amendment implications of the government’s conduct.  In an interview, Minns explained that “Antonio’s task is to take the offense in Aaron’s case, focusing on the government’s violation of state and federal civil rights laws, the First Amendment free speech implications of the government’s tactics, and the substantial reputational and financial harm that the D.O.J. has inflicted[.]”
There is no doubt that Buckley is a clever young man, and there is a bit of irony in how his story started—he won the money that he used to fund his website through a 2009 Android app idea contest, in which he proposed texting-while-walking protection using a camera view that lets texters know what is around them.  However, if the government can prove beyond a reasonable doubt that Buckley was a person “who infringe[d] a copyright willfully and for purposes of commercial advantage or private financial gain,” then the government will be able to punish Buckley under 18 U.S.C. 2319—criminal copyright infringement.

There are two compelling questions here: first, was the government right in addressing its grievance through criminal charges, and second, is Buckley’s legal team coming at this case from the right angle? 

There are two compelling questions here: first, was the government right in addressing its grievance through criminal charges, and second, is Buckley’s legal team coming at this case from the right angle?  The government could have pursued civil remedies in the form of monetary restitution, for instance, though it is also entitled to pursue criminal charges if there is probable cause that each statutory element of the crimes charged is met.  In fact, the government is correct in stating that it has an incentive to protect the interests of copyright holders.  Part of what is interesting about this case is that Google could have protected itself by not authorizing third party vendors and rigidly safeguarding its licenses, a la Apple.  In the matter of Buckley’s legal team’s strategy, if the elements of the charged crimes can be met, I predict that the defense will have a hard time scaring the U.S. Department of Justice with threatened civil rights actions.  In such a scenario, it is very likely that a judge or jury would see this case as a simple matter of charging a criminal violation appropriately, and that to see it otherwise would be to see criminal charges as per se civil rights violations for almost any defendant.  Either way, cases like Buckley’s are a real shame.