Federal prosecutors in Los Angeles are pursuing a 6-month prison term for a Los Angeles man who pleaded guilty in December to one misdemeanor count of uploading pre-release Guns N' Roses tracks, according to court documents.
Kevin Cogill was arrested last summer at gunpoint and charged with uploading nine tracks of the
Chinese Democracy album to his music site — antiquiet.com. The album, which cost millions and took 17 years to complete, was released November 23 and reached No. 3 in the charts.
The sentence being sought — including the calculation of damages based on the illegal activity of as many as 1,310 websites that disseminated the music after Cogill released it — underscores how serious the government is about punishing those for uploading pre-release material.
"Making a pre-release work available to the worldwide public over the internet where it can be copied without limit is arguably one of the more insidious forms of copyright infringement," prosecutor Craig H. Missakian wrote in court documents. "That is because once released it is virtually impossible to prevent unlimited dissemination of the work."
As part of the 28-year-old Cogill's guilty plea, he informed the authorities that he received the music online and unsolicited — a confession Missakian said might pave the way for more "targets" to be prosecuted.
"Needless to say, artists like the band Guns N' Roses put their blood, sweat, toil and tears into the creative process," Missakian said. "And this country has seen fit to protect their rights — and in doing so foster and encourage the creative process by which all of society benefits."
The government claimed the amount of infringement equaled $371,622. The higher the number the larger the potential prison term. The government said it produced a "reasonable estimate" and gave the defendant the "benefit of the doubt" in its calculations, which were based on each infringement being worth 99 cents on iTunes.
The Recording Industry Association of America, however, told the judge overseeing the case that the defendant's conduct resulted in more than a $2.2 million loss based on a "$6.39 legitimate wholesale value" for the nine tracks the RIAA claims (.pdf) were downloaded about 350,000 times.
Regardless of the phantom figures, the numbers floated by the government and the RIAA assume that the music would have been purchased had it not been downloaded for free.
Here's how the feds concluded the $371,622 in damages:
They said the music was streamed from Cogill's site 1,123 times to 801 IP addresses over a two-hour period. The authorities, based on a "conservative estimate," concluded nearly 400,000 downloads.
"This number is based on a sample of 30 out of 1,310 unauthorized web sites that offered the leaked songs to the public between June 19, 2008 and November 21, 2008," Missakian wrote.(.pdf) "Of the 1,310 web sites identified as having unauthorized copies of the music that defendant streamed, 30 of those contained information showing the number of downloads from their sites."
Of those 30 sites, the government said there were 16,976 downloads of
Chinese Democracy.
"It is most likely that this number represents the number of downloads of the group of 9 leaked songs, for a total of 152,784 downloads of individual songs (16,976 x 9)," Missakian wrote. "It is, however, not possible to say at this time whether the figure represents the group of 9 songs or individual songs. Giving the defendant the benefit of the doubt, the government will assume that the 16,976 figure represents downloads of individual songs."
But wait, the prosecution wrote more:
In addition to the above number, the Court should also add an additional number for the number of downloads from the remaining 1,200-plus web sites that offered the songs for download. The average number of downloads from the 30 sites for which actual data exists is 565. Again, giving the defendant the benefit of the doubt, the Court could reduce that number by one half and estimate that each other site accounted for 280 individual downloads, or a total of 358,400 (1,310-30 x 280), during the relevant period. By taking the total number of downloads of 375,376 (16,976 +358,400) and multiplying that number by $.99 per song downloaded, the infringement about becomes $371,622.
According to court records, Cogill uploaded nine songs from the 14-track album on June 18. Court records show he confessed to the FBI. The case was cracked by an investigator with the Recording Industry Association of America, according to court records.
Cogill's attorney, David Kaloyanides, told the court that no jail time was warranted. (.pdf) He added that, "There is no way to determine how many downloads were made."
Sentencing is set for May 4.
By the way, the RIAA said it would be willing to accept $30,000, instead of $2.2 million in restitution, if Cogill "was willing to participate in a public service announcement designed to educate the public that music piracy is illegal."
