2010.07.15 - Wired - Guns N' Roses Uploader Laughs Last

Guns N' Roses Uploader Laughs Last

The convicted Guns N' Roses uploader, Kevin Cogill, isn't the anti-piracy pitchman the Recording Industry Association of America was hoping for.

A year ago Wednesday, the 29-year-old Los Angeles man was sentenced to two months' home confinement and a year of probation for uploading nine unreleased tracks of Guns N' Roses' Chinese Democracy to his music site. Federal prosecutors initially sought six months of prison, but Cogill got no time after agreeing to do an RIAA public service announcement that would scare future file sharers straight.

But nobody has made him perform the PSA. As of Wednesday, and he's no longer under the court's jurisdiction. So the deal is no longer legally binding.

"I knew as soon as this went down, nobody would give a shit about me doing a PSA," Cogill said in a recent telephone interview.

The closest he came to providing a public service announcement was last August, in a – video interview with Current TV. He said file sharers can get "f'd in the A" from the RIAA and get it "right in the butt."

The proposed court-ordered PSA was vaguely defined from the beginning, he said. "We had some conversations about it, hypothetical conversations," Cogill said. "I said everybody is going to laugh at it."

FBI agents raided Cogill's home in 2008, and last year he pleaded guilty to uploading nine pre-release songs to his Antiquiet site from the 14-track Chinese Democracy album. He said he did not inform the authorities where he got them, although he said they asked.

Cara Duckworth, a spokeswoman for the RIAA, which alerted the FBI to Cogill's unlawful uploading, said in a Wednesday e-mail that the RIAA has "discretion whether or not to move forward" with a public service announcement.

"Due to various elements of this case (not to mention unnecessarily high production costs), we chose not to produce one," the e-mail said.

We're not sure what to think of the "high production costs" statement. The RIAA has spent $64 million in legal fees and costs to collect $1.3 million in damages as part of its copyright-litigation campaign.

A year ago, Los Angeles federal prosecutor Craig Missakian said the PSA would be a radio or television message of "Kevin talking about the importance of protecting copyright holders’ rights in their songs and movies."

In a telephone interview Wednesday, Missakian said Cogill's agreement to perform a PSA "was certainly part of our consideration" of eventually seeking 60 to 90 days in jail, compared to the original demand of six months.

"As far as our office was concerned, it was up to the RIAA to use him or not," Missakian said

But perhaps what saved Cogill from even more prison time was the many years it took Guns N' Roses' to publish Chinese Democracy, an album Cogill said he'd been dreaming about since he was 14. The band began producing the album in 1993 and it was published in November. It reached No. 3 in the charts.

"I've been waiting, literally half of my entire life," he said.

The album's slow production is significant insofar as copyright infringement law is concerned. Cogill faced a statutory maximum of five years in prison under the original felony charge for which he was arrested, but that would have required prosecutors to prove that he had distributed pre-release, commercial material over the internet.

With the album in production for a decade and a half, the government might have had a hard time convincing a jury that it was on track for commercial distribution. The charges were subsequently reduced to a one-year maximum, misdemeanor copyright-infringement charge, which did not require proof that Chinese Democracy was going to be released.

"That was one of our positions that there was never any indication it was coming out anytime soon," said Cogill's attorney, David Kaloyanides, in a Wednesday telephone interview.

Cogill wondered aloud: "How could they prove it was for commercial release when it was lying around for 15 years?"

Other likely factors for the reduced charge, Kaloyanides said, was that some of the tracks had leaked in England 15 months before and it "might have been an intentional leak from somebody on the inside."

Missakian said "internal discussions," which he declined to disclose, paved the way for the government to agree to reducing the charges on the plea agreement.

A year ago, a federal judge eventually gave Cogill no prison time. "I don't think jail time was in the cards," Missakian said.

Cogill, now an independent web developer, said he'll never forget when the FBI awoke him at 7 a.m. that summer.

"I come to the door, and immediately I'm yanked out of the doorway. I'm flipped around and there was like six or seven guns pointed at me," he said.

The best advice he got was from his Los Angeles lawyer, Kaloyanides. "He told me," Cogill said, "'to shut my fucking mouth and don't say shit to the feds.'" But Kaloyanides was retained too late, after Cogill spilled the beans and handed over his laptop.

https://www.wired.com/2010/07/gnr-uploader/