United States v. Beshara et al. - Indictment

8/4/2019 United States v. Beshara et al. - Indictment

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r FILEDIN OPEN COURT

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CLERK.Ua DISTRICT COURTALEXANDRIA.VIRGINIAIN THE UNITED STATES DISTRICT COURT FOR TH I

EASTERN DISTRICT OF VIRGINIAAlexandria Divis ion

UNITED STATES OF AMERICA

HANA AMAL BESHARA(a/k/a "Phara" and "PharaOhess"),

MATTHEW DAVID HOWARD SMITH(a/k/a "Dead lne"),

JOSHUA DAV ID EVANS(a/k/a "Wadswerth"),J EREMY LYNN ANDREW

(a/k/a "Htrdfrk"), andZOIMERTZANIS

(a/k/a "Tik"),Defendants

IND ICTMENT

Criminal No. 1:11CR447CounLL: 18 U.S.C. 371-Conspiracy to CommitCopyrightInfringementCounts 2-5: 18 U.S.C. 2,2319;17U.S.C. 506-Criminal Copyright InfringementByDistributing a CopyrightedWork on a Computer Network &Aiding and Abetting ofCriminalCopyright InfringementCount 6: 18 U.S.C. 2,2319;17 U.S.C. 506-Criminal Copyright InfringementByElectronic Means &Aiding and Abetting ofCriminalCopyright Infringement

SEPTEMBER 2011 TERM - at Alexandria, VirginiaTHE GRAND JURY CHARGES THAT:I. Introduct ion

At al l t imes relevant to this Indictment:A. The NinjaVideo Conspiracy

1. Beginning in approximately February of2008andcontinuing to June30,2010,the Internet website NinjaVideo.net wasoperated bya groupof individuals from locationsaroundtheworld. NinjaVideo.nethad millionsof visitorsand provided those visitorswith theability to illegally download infringing copies of copyrighted movies (many ofwhich were still

Case 1:11-cr-00447-AJT Document 1 Filed 09/08/11 Page 1 of 17 PageID# 1


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playing in theaters, and someofwhich had not yet been released inmovie theaters),as wellastelevision programs, in high-quality formats.

2. Visitors to theNinjaVideo.net website could download much of the infringingcopyrighted material for free; however, for a minimum "donation" of$25.00, visitors obtained a"premium" membership and gained access to additional copyrighted material, including a widerrange ofmovies, comic books, and computer software. "Premium" members also obtained theright to requestspecificcontentfrom the administrators of theNinjaVideo.net website. Thecontentavailable onNinjaVideo.net wasprovidedby"uploaders"who locatedpiratedcopiesofcopyrighted worksandmade the files available on the Internet forunlawful reproduction anddistribution by members of the conspiracy.

3. During the operationofNinjaVideo.net, membersof the NinjaVideoconspiracyreceived proceeds ofmore than $500,000 from their illegal conduct, while unlawfullydistributingmillions ofdollars in infringing copiesofcopyrightedworks.

4. FromDecember 2009until June2010, agents fromHomeland SecurityInvestigations ("HSI"), operating from theNational Intellectual PropertyRightsCoordinationCenter in Arlington, Virginia, within the Eastern District ofVirginia, utilized NinjaVideo.net inan undercover capacity. Duringthat time, theNinjaVideo conspiracymadepiratedmoviesavailable to an undercoveragent. The agentsubsequently downloaded forty-four (44)of thesemovies to a computer located in Arlington, Virginia; all of the movies were confirmed to beinfringing copies of copyrighted motion pictures. At thetime theyweredistributed bytheNinjaVideoconspiracy, one (1) of the pirated copyrighted movies downloadedby theundercoveragent hadnotyetbeenreleased in theaters in theUnited States; forty (40)of thecopyrightedmovies hadbeen released inU.S. theaters buthadnotyetbeenreleased onDVD; and three (3)of



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themovies hadalready been released onDVD. Thesedistributions by theNinjaVideoconspiracy of infringing copiesof valuable copyrighted workswere not authorized by the

copyright holders andwere clearly marked as products from known Internet piracy groups.B. Defendants

5. HANA AMAL BESHARA (a/k/a "Phara", "PharaOhess"), a resident ofNewJersey, was oneof the founders ofNinjaVideo andservedas theprimaryday-to-dayadministrator of theNinjaVideo.netwebsite. At various times during thecourse of theconspiracy, BESHARA supervised thegroup's forum board (where members of theconspiracydiscussed the operations ofNinjaVideo.net), supervised themoderators whopoliced theNinjaVideo.netwebsite,publicized thewebsite, negotiated contracts and business dealswiththird parties, and assisted NinjaVideo.net visitors and users. BESHARA made regular paymentsfor computer serversutilizedbyNinjaVideo.net, andalsodistributed proceedsto someof hercoconspirators.

6. MATTHEW DAVID HOWARD SMITH (a/k/a"Deadlne"), a resident of NorthCarolina, was another founder ofNinjaVideo andadministrator of theNinjaVideo.netwebsite.SMITH paidforand registered many Internet domain names for thebenefit of theNinjaVideoconspiracy, including most notably NinjaVideo.net. SMITH located (and, where necessary, paidfor) servers tobeused aspartof the conspiracy. SMITH primarily designed many of theoperational elements of the website, including sophisticated tools andscripts that enabledNinjaVideo.net visitors to view and download the website's high-quality copyrighted content (inparticular, the "NinjaVideoHelper applet"). SMITH contacted Internet advertising entities andentered into agreements wherein those entities would place advertisements on the NinjaVideo.netwebsite. SMITH received this advertising revenue, aswell as "donations" from NinjaVideo.net



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members, andthendistributed hundreds of thousands of dollars in proceeds tohiscoconspirators.

7. JOSHUA DAVID EVANS (a/k/a "Wadswerth"), a resident of the state ofWashington, servedas oneof themost activeuploaders of copyrighted material for theNinjaVideo.net website. EVANS supervised most of the North American-based uploaders,including directing uploaders to locatespecific infringing copyrighted contentfor theNinjaVideo.net website. EVANS also conducted background checks on individuals requestingaccessto communications with the top administrators ofNinjaVideo.net.

8. JEREMY LYNN ANDREW (a/k/a "Htrdfrk"), a resident ofOregon, heldthetitleof "Head ofSecurity" for NinjaVideo.net. ANDREW assisted website visitors with technicalissues, including issues thatarose from theNinjaVideo Helper applet, and assisted with issuesrelated to theNinjaVideo.net servers, including monitoring for unauthorized access to serversand searching for additional contentservers for theconspiracy.

9. ZOIMERTZANIS (a/k/a "Tik"), a resident ofGreece, served as another of themostactiveuploaders of copyrighted material for theNinjaVideo.net website. MERTZANISsupervised most of theEuropean-based uploaders, including directing uploaders to locatespecific infringing copyrightedcontent for theNinjaVideo.netwebsite.



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COUNT 1

(18U.S.C. 371-Conspiracy)THE GRAND JURY CHARGES THAT:

10. Paragraphs 1 through 9 are re-alleged and incorporatedas if set forth here in theirentirety.

11. Beginning in approximately February 2008 andcontinuing untilJune30,2010, inthe Eastern District ofVirginia and elsewhere, the defendants,

HANA AMAL BESHARA,MATTHEW DAVID HOWARD SMITH,

JOSHUA DAVID EVANS,JEREMY LYNN ANDREW, and

ZO I MERTZAN I S

each knowingly and intentionally combined, conspired, andagreed together andwith each other,and with other persons known and unknown to the Grand Jury, to 1) willfully infringe, forpurposes of private financial gain, ten(10)ormore copies ofone(1)ormore copyrighted workswitha totalretail valueofmore than$2,500 within a 180-day period, in violation ofTitle17,United States Code, Section 506(a)(1)(A) and Title 18, United States Code, Section 2319(b)(1),and2)willfully infringe, forpurposes of private financial gain, a copyright by the distribution ofawork being prepared for commercial distribution, bymaking it available ona computernetwork accessible to members of the public, when the defendants knew and should have knownthat theworkwas intended for commercialdistribution, in violationofTitle 17,UnitedStatesCode, Section 506(a)(1)(C) andTitle 18, United States Code, Section 2319(d)(2).



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Ways, Manner, and Means of the ConspiracyIn furtherance of the conspiracy, defendants and others known and unknown to the Grand

Jury employed, among others, the following mannerandmeans:12. Itwas partoftheconspiracy that thedefendants and their co-conspirators operated

NinjaVideo.net. NinjaVideo.net was an Internet site thatprovided users with the ability toillegally download infringing copies ofcopyrighted movies (many ofwhich were still playing inmovie theaters, and some ofwhich hadnotyetbeen released inmovie theaters), televisionprograms,and computer software, in high-qualityformats.

13. Itwas further part of theconspiracy thatvisitors to theNinjaVideo.net websitecould download much ofthe infringing copyrighted material for free; however, foraminimum"donation" of $25.00, visitors obtained a "premium" membership andgained access to additionalcopyrighted material, including awider range ofmovies, comic books, and computer software."Premium"members also obtained the right to requestspecificcontent fromthe administratorsof theNinjaVideo.net website (which included several of thedefendants).

14. Itwas further partof the conspiracy that members of the conspiracy knowinglyobtained unauthorized copies of copyrighted works. Atall times relevant to thisIndictment, themembers ofthe conspiracy knew well that they didnot have license, permission, authorization,or other authority from theowners of thecopyrighted works to reproduce anddistribute them,including making them available over the Internet for download and distributing them over theInternet. Inparticular, thecontent available onNinjaVideo.net was provided bymembers of theconspiracy called"uploaders," who located piratedcopiesof copyrighted worksandmade thefiles available on computer networks for unlawful reproduction and distribution by members ofthe conspiracy.



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15. Itwas further partof theconspiracy that the conspiracy derived income fromadvertising that was placed on the NinjaVideo.net website, aswell as from NinjaVideo.netmember "donations." Between February of2008 and June 30,2010, thedefendants collectivelyreceived morethan$500,000.00 fromadvertising and "donations."

16. Itwas further partof theconspiracy thattheNinjaVideo.netwebsite, forum board,andcontent were hosted on various servers in theNetherlands; France; Chicago, Illinois; andAshbum, Virginia (thelastof which is located in theEastern District ofVirginia).

17. Itwas further partof theconspiracy thatthe infringing copies of copyrightedworks onNinjaVideo.net were made available tomillions of visitors each month. For example,during the last week of June 2010, NinjaVideo.net fulfilled more than 309,428 movie requestsand 633,458 television program requests.

Ove rt A c ts

18. Itwas further part of the conspiracy that the following acts in furtherance of and toeffect the objects of the above-described conspiracywere committed in the EastemDistrictofVirginia and elsewhere:

a. Fromat least January4,2010 until June 30,2010, infringing copiesofcopyrighted materials were stored and accessed bymembers of the conspiracy atCarpathiaHosting inAshburn, Virginia, which is in theEastern District ofVirginia.



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b. On various dates, amember of the conspiracy received proceeds of the conspiracythrough Paypal from NinjaVideo.net users residing in the Eastern District ofVirginia, includingany one of the following:

1) OnJune3,2010, userNSfrom Herndon, Virginia, madea payment of$3.33;2) OnJune4,2010, userJE from Herndon, Virginia, made a payment of$50.00; and3) OnJune6,2010, userDSfrom Fairfax, Virginia, made a payment of

$20.00.

c. FromDecember 17,2009 untilJune 16,2010, HSIagents,operating from theNational Intellectual PropertyRights Coordination Center in Arlington, Virginia,within theEastern District of Virginia, downloaded 44 pirated motion pictures that were made available forreproduction anddistribution bymembers ofthe conspiracy from servers atCarpathia Hosting inAshburn, Virginia, withinthe EasternDistrictof Virginia, and elsewhere.

d. Onvarious dates, members of theconspiracy made infringing copyrightedmaterials available on Internet-connected computer servers located at Carpathia Hosting inAshbum, Virginia, within theEastern District ofVirginia, fordownload bymembers oftheconspiracy andthepublic, including anyof the following examples:

1) Onor about January 4,2010, members of the conspiracy infringed thecopyrightof the motion picture "Avatar" (which had been released inU.S.theaters onor about December 18,2009,andwould notbe commerciallydistributed untilon or aboutMay 22,2010) bymaking it available onpublicly accessible servers at Carpathia Hosting anddistributing it overtheInternet without authorization;

2) On or aboutJanuary 21,2010,members of the conspiracy infringed thecopyrightof the motion picture "2012" (which had been released in U.S.theaters onor about November 13,2009, andwould notbe commerciallydistributed until on or aboutMarch 2, 2010)by makingit available onpublicly accessible servers atCarpathia Hosting anddistributing it overtheInternet without authorization;8



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3) OnoraboutMay4,2010,members of the conspiracy infringed thecopyrightof the motion picture "Iron Man 2" (which would not bereleasedin U.S. theaters untilonor aboutMay7,2010, andwouldnotbecommercially distributed untilon or aboutSeptember 28,2010) bymaking it available on publicly accessible servers at Carpathia Hosting anddistributing it over the Internet without authorization; and

4) Onor about June 16,2010, members of the conspiracy infringed thecopyrightof the motion picture "The A-Team" (which had been releasedinU.S. theaters onorabout June 11,2010, and would notbecommerciallydistributed untilon or aboutDecember 14,2010) bymaking it available onpubliclyaccessible servers at Carpathia Hostinganddistributing it over theInternet without authorization.

e. Fromonor about June 23,2010 untilJune30,2010, members of the conspiracyinfringed byelectronic means, including bymeans of the Internet, more than ten (10) copies ofoneormore copyrighted works which hada total retail value ofmore than $2,500 for purposes ofprivate financial gain.

f. OnoraboutJanuary 19,2008, defendantSMITH madea payment toEcatel Ltd.in theNetherlands for Internet hostingservices associated withNinjaVideo.net.

g. Onor about January 28,2008, defendant SMITH received an advertising paymentfor advertising on NinjaVideo.net from Google AdSense.

h. Onor about February 1,2008, defendant SMITH received anadvertising paymentfor advertising on NinjaVideo.net from AdBrite.

i. Onor about March 3,2008, defendant SMITH andhis co-conspirators continuedto operate NinjaVideo.net, despite SMITH receiving an electronic mail message onthatdatefromGoogle AdSense that its advertisements on NinjaVideo.net had beendisabled because thesite was illegallydistributing copyrightedmaterials.



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j. Onor about March 20,2008, defendant SMITH andhisco-conspirators continuedto operate NinjaVideo.net, despite SMITH receiving a second electronic mail message on thatdate from Google AdSense thatitsadvertisements onNinjaVideo.net hadbeen disabled becausethe site was illegallydistributing copyrightedmaterials.

k. On orabout May 16,2008, defendant SMITH received an advertising payment foradvertising onNinjaVideo.net fromMpireCorp.

1. Onor about June 2,2008, defendant SMITH made a payment toLeaseWeb in theNetherlands for Internet hosting services associated withNinjaVideo.net.

m. Onor aboutOctober6,2008, defendant SMITH madea payment to his coconspirator BESHARAforher involvement in NinjaVideo.net.

n. Onor aboutNovember8,2008, defendant SMITH madea payment tohis coconspirator EVANS for his involvement in NinjaVideo.net.

o. Onor aboutDecember 4, 2008,defendant SMITH madea payment tohis coconspiratorMERTZANISfor her involvement in NinjaVideo.net.

p. Onor about February 14,2009, defendant SMITH made a payment tohiscoconspirator ANDREW for his involvement in NinjaVideo.net.

q. Onor about February 17,2009, defendant BESHARA made a payment toLeaseWeb intheNetherlands for Internet hosting services associated with NinjaVideo.net.

r. Onor about April 23,2009, defendant BESHARA made individual payments toher co-conspirators ANDREW, EVANS, and MERTZANIS for their involvement inNinjaVideo.net.

s. Onorabout January 21,2010, defendant BESHARA received anadvertisingpayment for advertising on NinjaVideo.net from AdBrite.

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t. Onor about February 1,2010, defendant BESHARA received anadvertisingpayment for advertising onNinjaVideo.net from OpenX.

(All in violation ofTitle 18, United States Code, Section 371).

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COUNT 2

(18 U.S.C. 2,2319; 17U.S.C. 506 -Criminal Copyright Infringement ByDistributing a CopyrightedWork on aComputerNetwork& Aiding andAbetting Criminal Copyright Infringement)

THE GRAND JURY CHARGES THAT:19. Paragraphs 1 through 18are re-alleged and incorporated as if set forth here in their

entirety.20. On or about January4, 2010, in the EasternDistrictofVirginiaand elsewhere, the

defendants,HANA AMAL BESHARA,

MATTHEW DAVID HOWARD SMITH,JOSHUA DAVID EVANS,

JEREMY LYNN ANDREW, andZO I MERTZANI S

didwillfully, andforpurposes of private financial gain, infringe a copyright by distributing aworkbeingprepared for commercial distribution, to wit, themotionpicture "Avatar" (which hadbeen released inU.S. theaters onor about December 18,2009, and would notbecommerciallydistributed until onor about May 22,2010) bymaking it available on a computer networkaccessibletomembersof the public, when defendants knew,and should have known, that thework was intended fo r commercial distribution.

(All in violation ofTitle 17,UnitedStatesCode,Section506(a)(1)(C) andTitle 18,United StatesCode, Sections 2 & 2319(d)(2))

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COUNT 3(18 U.S.C. 2,2319; 17U.S.C. 506 -Criminal Copyright Infringement By Distributing aCopyrighted Work onaComputer Network &Aiding and Abetting Criminal Copyright Infringement)

THE GRAND JURY CHARGES THAT:21. Paragraphs 1 through 18 are re-alleged and incorporated asif set forth here in their

entirety.22. On or about January 21,2010, in the Eastern District ofVirginia and elsewhere,

the defendants,HANA AMAL BESHARA,


JEREMY LYNN ANDREW, andZO I MERTZANIS

did willfully, and for purposes ofprivate financial gain, infringe a copyright by distributing awork being prepared for commercial distribution, towit, the motion picture "2012" (which hadbeen released inU.S. theaters on orabout November 13,2009, and would not be commerciallydistributed until onorabout March 2,2010) bymaking it available ona computer networkaccessible tomembers ofthepublic, when defendants knew, and should have known, thatthework was intended fo r commercial distribution.

(All in violation of Title 17,UnitedStatesCode,Section 506(a)(1)(C) andTitle 18,United StatesCode, Sections 2 & 2319(d)(2))

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COUNT 4

(18 U.S.C. 2,2319; 17U.S.C. 506 -Criminal Copyright Infringement ByDistributing a CopyrightedWork on aComputer Network&Aiding and Abetting Criminal Copyright Infringement)

THE GRAND JURY CHARGES THAT:23. Paragraphs 1 through 18are re-alleged and incorporated as if set forth here in their

entirety.24. Onor about May 4,2010, in theEastern District ofVirginia and elsewhere, the

defendants,HANA AMAL BESHARA,


JEREMY LYNN ANDREW, andZO I MERTZAN IS

did willfully, and for purposes ofprivate financial gain, infringe a copyright by distributing awork being prepared for commercial distribution, to wit, the motion picture "Iron Man 2"(whichwould notbe released inU.S. theaters untilon or aboutMay7,2010, andwould notbecommercially distributed untilonor about September 28,2010) bymaking it available on acomputer network accessible to members of thepublic, whendefendants knew,andshouldhaveknown, that the work was intended for commercial distribution.

(All inviolation ofTitle 17, United States Code, Section 506(a)(1)(C) andTitle 18, United StatesCode, Sections 2 & 2319(d)(2))

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COUNT 5

(18 U.S.C. 2,2319; 17U.S.C. 506 -Criminal Copyright Infringement By Distributing aCopyrighted Work onaComputer Network &Aiding and Abetting Criminal Copyright Infringement)THE GRAND JURY CHARGES THAT:

25. Paragraphs 1 through 18 are re-alleged andincorporated as if set forth here in theirentirety.

26. On or about June 16,2010, in the Eastern District ofVirginia and elsewhere, thedefendants,



ZO I MERTZAN I S

did willfully, and for purposes ofprivate financial gain, infringe a copyright by distributing awork being prepared forcommercial distribution, towit, themotion picture "The A-Team"(whichhad been released inU.S. theaters onor aboutJune 11,2010, andwouldnotbecommercially distributed until onor about December 14, 2010) bymaking it available onacomputer network accessible tomembers ofthepublic, when defendants knew, and should haveknown, that the work was intended for commercial distribution.

(All in violation ofTitle17, United States Code, Section 506(a)(1)(C) andTitle 18, United StatesCode, Sections 2 & 2319(d)(2))15



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COUNT 6

(18 U.S.C. 2,2319; 17U.S.C. 506 -Criminal Copyright Infringement ByElectronicMeans&Aiding andAbetting Criminal Copyright Infringement)THE GRAND JURY CHARGES THAT:

27. Paragraphs 1 through 18 arere-alleged and incorporated asifsetforth here in theirentirety.

28. During the 180-day period ending on June 30,2010, in the Eastern District ofVirginia and elsewhere, the defendants,



ZO I MERTZANIS

did willfully, and for purposes ofprivate financial gain, infringe the copyrights ofcopyrightedworks, that is, motion pictures, television programs, and software, by the reproduction anddistribution over the Internet, during a 180-day period, often (10) ormore copies ofone (1) ormorecopyrighted works which had a total retail valueofmore than $2,500.

(All in violation ofTitle 17, United States Code, Section 506(a)(1)(A) andTitle 18, United StatesCode, Section 2319(b)(1))

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FORFEITURE ALLEGATION ONE

Pursuant to Rule 32.2(a), thedefendants arehereby notified that, if anyof them areconvicted of any of the offenses charged in Counts 1 through 6 above, he/she shall forfeit to theUnited States, pursuant to 18 U.S.C. 2323(b), any property constituting or derived from anyproceeds obtained directly or indirectly as a result of the commission ofanoffense involving 18U.S.C. 2319, and any property that was used or intended to be used to commit or facilitate thecommission of anoffense involving 18U.S.C. 2319. In addition to anycomputer equipmentseized by law enforcement, suchproperty shall include any intellectual property facilitating theoffense, including, butnot limited to,anyInternet domain names utilized as partof theoffense.

If anyproperty being subject to forfeiture pursuantto 18U.S.C. 981(a)(1)(C) and28U.S.C. 2461(c), as a result of any act or omission of the defendant -

a. cannot be locatedupon the exerciseofdue diligence;b. has been transferred or soldto, or deposited with, a thirdparty;c. has been placed beyond thejurisdiction of the court;d. has been substantially diminished in value; ore. has been commingledwith otherpropertywhich cannot bedividedwithoutdifficulty,

itis the intent of the United States to seek forfeiture of any properties of the defendants upto$505,000.00 inUnited States Currency.

A TRUE BILL:Nei l H. MacBrideUnited State Attorney JSSSSSSSSSSiL

undersea! in the Cleft's Office.

JayV. Prabhu Foreperson of the Grand JuryLindsay A. KellyAssistant United States AttorneysGlenn AlexanderTrial Attorney, U.S. Department of JusticeComputerCrime & Intellectual Property Section

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United States v. Beshara et al. - Indictment