In August 2019, eight men were indicted by a grand jury for conspiring to violate criminal copyright law by running two of the largest unauthorized streaming services in the United States.
Kristopher Lee Dallmann, Darryl Julius Polo, Douglas M. Courson, Felipe Garcia, Jared Edward Jaurequi, Peter H. Huber, Yoany Vaillant, and Luis Angel Villarino were the operators of Jetflicks, a subscription TV show streaming service that was reportedly disguised as an aviation service.
The defendants were charged with copying thousands of copyrighted TV shows and streaming them to customers all over the United States. Jetflicks reportedly had a massive library running to more than 183,000 episodes.
In December 2019, Darryl Julius Polo (who also ran another service called iStreamitAll) pleaded guilty to charges of copyright infringement and money laundering. Jetflicks programmer Luis Angel Villarino pleaded guilty to criminal copyright infringement.
The main trial was delayed due to problems with obtaining huge amounts of evidence from Canada, not to mention the coronavirus pandemic, but is now scheduled for July 2021. Before then, however, there are still matters to be cleared up.
US Govt Wants To Limit Defendants' Defense Options
On March 25, 2021, defendant Felipe Garcia filed a notice with the court indicating that he would like to rely on a so-called "advice-of-counsel" defense, noting that he had obtained 'expert' advice at some point and had therefore acted in good faith.
Garcia is the only defendant in the case to have filed such a notice, despite Jetflicks founder Kristopher Dallman previously claiming that he paid for legal advice in 2008 and thought he was within the law.
Unfortunately for Garcia, the US Government believes that he should be precluded from presenting any evidence related to an advice-of-counsel defense because, in essence, they believe that no such defense opportunity exists.
Case Facts Undermine The Defense
According to the US Government, Garcia wishes to present his defense "in accordance" with the previous statements of Darryl Polo. During an interview with the FBI in 2017, Polo noted that "everything he has done is legal under the 'Fair Use Act'" and that "if he owns a copy of something he can let people rent it."
Polo also claimed to have attended a meeting with Dallmann and a retired judge in Las Vegas who told them their business was legal. "In particular if they owned a copy of a given title, they could essentially rent that copy to others," the Government notes, recalling Polo's statement.
Later, however, Polo is said to have admitted knowing "from early on" that the Jetflick's business model was illegal and that the other defendants must've known that too, since "they knew Jetflicks was using SickRage and torrents" to obtain television episodes.
"Polo also noted that Jetflicks offered a service called Realflicks as a paid add-on that gave subscribers access to reality television shows. Such shows were generally not available for purchase," the Government adds.
Importantly, Polo also admitted that Jetflicks did not comply with the alleged advice from the lawyer, including the suggestion that "it was ok to stream the television shows if you owned a copy of the show [as long as you] own[ed] as many copies as were being streamed at any given time."
According to Polo, Jetflicks did not have DVDs for every TV show and did not have multiple copies either. In fact, Jetflicks streamed copies of TV shows as soon as they were aired and before they were available on DVD. Claiming that Jetflicks used SickRage and SickBeard to "obtain 100% of the content" from "completely illegal sources", Polo later pleaded guilty to numerous counts in the indictment.
Advice-of-Counsel Defense Should Be Disallowed
If he was to rely on an advice-of-counsel defense, Garcia should have provided much more evidence in support of it, the US Government notes. This should include evidence to show that all of the pertinent facts were disclosed to the legal professional and the advice received was strictly adhered to.
In this matter, Garcia did not even supply the name of the "retired judge", leading the Government to note that it's therefore impossible to determine if the person was qualified to give any advice.
However, even if that was the case, the Government says that Garcia knew that any advice wasn't being followed. Text messages between Dallmann and Garcia showed that both knew that TV shows were being streamed on Jetflicks on the day they officially aired and before they appeared on DVD. But there's more too.
"Most telling, the evidence shows that once Garcia left the conspiracy, he threatened to report Dallmann to the Motion Picture Association of America," the Government writes.
"If Garcia believed that what Jetflicks was doing was legal and that Jetflicks was obtaining its content from legitimate sources in conformance with this alleged legal advice, why would Garcia have threatened to report Dallmann to the MPAA?
"The evidence in this case belies any suggestion that Garcia was relying on alleged legal advice that Jetflicks could 'rent' material when the company owned a copy of a particular television program."
For this and a number of other reasons, the US Government informs the Court that it should bar all of the defendants – Garcia included – from presenting "any evidence at trial regarding communications with or advice from legal professionals."
The US Govenment filing can be found here (pdf)
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