Federal police arrested a blogger on Aug. 27, 2008 for streaming nine songs from “Chinese Democracy,” an as-yet unreleased album from the band Guns N’ Roses, on the Internet. He has plead not guilty to the charges.
The blogger, Kevin Cogill, who posts on the site www.antiquiet.com under the alias “Skwerl,” was charged with copyright infringement under 17 U.S.C. section 506(a)(1)(C), according to an affidavit available at http://www.thesmokinggun.com/archive/years/2008/0827082gnr1.html. The American Bar Association Journal said in an August 29 story that the provision, added to the law by the Family Entertainment and Copyright Act of 2005, has generally been used to prosecute commercial piracy rings.
The law states, in part, that “Any person who willfully infringes a copyright shall be punished ... if the infringement was 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.” The law provides for penalties of up to 3 years in prison, with two additional years if financial gain can be shown.
Cogill posted the songs on Antiquiet on June 18. The songs were originally streamed, meaning users could listen to but not download the songs, although recordings of the songs were converted into downloadable mp3s and are currently widely available on various file sharing sites.
A self-proclaimed fan, Cogill had chastised the band and Geffen, its record company, for delaying the release of the new album. He stated in a June 6 Antiquiet posting that “the more you dick around with the details, the more likely the album is to leak on the [I]nternet, spoiling whatever big plans you’re cooking up anyway.”
The album has been a work-in-progress since 1994, and has racked up at least $13 million in production costs, according to a March 6, 2005 story in The New York Times. A September 13 story on the ABC News Web site stated the album has a tentative November 25 release date, and the lead single, “Shackler’s Revenge,” was released on the “Rock Band II” video game in September 2008.
According to a June 24 story on Rolling Stone’s Web site, Cogill used to work in the distribution department of Universal Records and is currently a Web designer. He said he received the tracks from “an anonymous online source.”
The Rolling Stone story said that massive traffic in the wake of posting the “Chinese Democracy” tracks caused the Antiquiet site to crash. Cogill also said in the story that he received a phone call from “the Gn’R camp” requesting that the songs be removed, and that he complied.
A cease-and-desist letter soon followed threatening possible legal action. Cogill was arrested on August 27. He posted a $10,000 signature bond and was released pending a preliminary hearing on October 20, where he plead not guilty, according to an October 21 Reuters report.
After Cogill’s arrest, Assistant U.S. Attorney Craig Missakian said the Recording Industry Artists Association had alerted the Department of Justice to the case, and he planned to prosecute similar cases as they arose in what could signal a more aggressive stance in the fight against online music piracy. “We take this type of crime very seriously,” he said, according to a story in the August 28 Wall Street Journal.
“In the past, these may have been viewed as victimless crimes,” said Craig Missakian, an assistant U.S. attorney in Los Angeles who built the case with the FBI and recording-industry investigators, in an August 29 story in the Los Angeles Times. “But in reality, there’s significant damage. This law allows us to prosecute these cases.”
The industry is particularly sensitive about pre-release leakage, which “pops the balloon,” Eric German, an attorney with Mitchell, Silberberg & Knupp who has represented the recording industry in piracy cases, told Los Angeles Times. “It rips up the lottery ticket. It takes the wind out of everything,” German said.
Corynne McSherry, staff attorney with the Electronic Frontier Foundation, said in the August 29 Los Angeles Times story that the arrest of Cogill was troubling because it raised the prospect of eager fans going to jail for posting a handful of songs.
“Bringing that hammer down on an individual music fan strikes me as entirely inappropriate,” she said. “Taxpayers should be concerned that they are picking up Hollywood and the music industry’s legal costs, particularly when you are going after an individual like this.”
An August 27 story from the Web site for technology magazine Wired stated that Cogill could also face a civil copyright infringement suit from Guns N’ Roses. Statutory damages in a civil case for releasing the material with intent or malice are up to $150,000 per song, for a total that could exceed $1.3 million.
“The band is in the position now where they can start a civil action, and they would be successful,” said Howard Rubin, an entertainment lawyer at the New York law firm of Goetz and Fitzpatrick, in the Wired story, “But how are their fans feeling about this? They’ll have their own public relations issues as to whether they’re going to start an action here.”
In a July 6 response to his original posting of the songs, Cogill wrote that “sooner or later, everyone will realize that downloading music and supporting an artist are far from mutually exclusive ... all the positive hype surrounding these leaks will do more for [“C]hinese [D]emocracy[”] sales than any billboard or corporate media review ... [I] for one, will buy the album when it comes out ... and [I] will also surely pay to see the band do these great new songs live.”
Although the band has not commented officially on the Cogill case, Slash, the former Guns N’ Roses lead guitarist, did not have kind words for the blogger. “I hope he rots in jail,” said Slash in the August 29 Los Angeles Times story. “It’s going to affect the sales of the record, and it’s not fair. The Internet is what it is, and you have to deal with it accordingly, but I think if someone goes and steals something, it’s theft.”
– Jacob Parsley
Silha Research Assistant