A man who pleaded guilty to a misdemeanor charge of illegally uploading and streaming nine pre-release Guns N’ Roses tracks from his Web site last June could face up to six months in prison if the judge hearing the case accepts the government’s sentencing recommendations.
Kevin Cogill, of Los Angeles, was arrested at gunpoint by five FBI agents last August. He was charged with willfully infringing music copyrights for uploading and streaming nine songs from Guns N’ Roses’ Chinese Democracy album via his music blog.
The songs were streamed five months before the album was officially released in November 2008.
Cogill was initially charged in a felony complaint, but that charge was later reduced to a misdemeanor after he agreed to help law enforcement identify the source who had given him the unauthorized pre-release copies of the songs. Cogill pleaded guilty to the charge in December in U.S. District Court for the Central District of California, where the case is being heard.
In arguing for a six-month sentence for the offense, prosecutors claimed that Cogill’s actions had resulted in copyright infringement worth at least $371,622. Prosecutors said the amount was based on the fact that the songs streamed from Cogill’s Web site were later made available for download on sites around the world, resulting in potentially tens of thousands of illegal downloads.
Prosecutors pointed to a two-hour window of time on June 18, 2008, during which they said the songs were streamed from Cogill’s site before Cogill took the site down. During that time, the songs were streamed more than 1,120 times, they said. Between June and November 2008, the songs streamed from Cogill’s site were available for download on more than 1,300 sites, prosecutors claimed.
A sampling of just 30 of those sites shows that there were at least 16,976 downloads of the Chinese Democracy album, or an average of at least 564 downloads of the infringed songs from each of those sites, prosecutors said. Even assuming that the number of downloads from each of the other sites was half of this average, the total number of illegal downloads would still have exceeded 375,000, they said. Assuming the retail price to download each song had been 99 cents, Cogill’s actions resulted in over $371,000 worth of infringement, the prosecutors said.
Meanwhile, the Recording Industry Association of America (RIAA), which has been carrying on a multiyear crusade against music piracy, filed a victim impact statement on behalf of the music industry and Geffen/Universal Music Group, the owner of the infringed album.
In it, Carlos Linares, vice president of the RIAA’s antipiracy group, said that because of Cogill’s actions, the music labels could suffer damages as high as $3 million. In seeking restitution from Cogill, the RIAA said it could conclusively demonstrate a loss exceeding $151,000 based on the same sample size of 30 sites that prosecutors used. Linares added that the RIAA would be willing to accept a lower restitution of $30,000 if Cogill agreed to participate in a public service announcement saying music piracy was wrong.
Meanwhile, Cogill’s attorney, David Kaloyanides, urged the court to follow an earlier presentence report in which the state probation office recommended Cogill be given a one-year probation for his offense. Kaloyanides also asked the court to waive all fines and to order no restitution in the case.
In making his case for Cogill, Kaloyanides attempted to downplay the scope of the copyright infringement. He noted the 14-year history behind the creation and ultimate release of Chinese Democracy and the album’s relative lack of success in the market. He said the fact that the album, as of February, had sold just over 530,000 copies had nothing to do with Cogill’s infringement. Rather, he suggested, the album’s relative failure had more to do with poor marketing and the band’s own failure to properly promote it through videos, tours and interviews.
Kaloyanides noted interviews where lead vocalist Axl Rose blamed record company executives for not putting enough support behind the album. In one of those interviews, Rose expressed his opinion that the album’s sale had not been affected by Cogill’s actions, he said.
The attorney said that in total the songs had been available for streaming for just 20 minutes before Cogill’s site crashed as a result of traffic. Cogill received a cease-and-desist letter from attorneys before he had a chance to restore the site and never streamed the songs again.
Kaloyanides also challenged the manner in which the retail value for the infringed material had been calculated and the extent to which the songs had been distributed.
Sentencing in the case is scheduled for May 4.