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July 15, 2009

Creative sentencing term for blogger who leaked GNR creativity

This Wired story, headlined "Guns N’ Roses Uploader Gets House Arrest, Will Make Anti-Piracy Ad," notes the creative sentencing term imposed in a case about who gets access to creativity:

A Los Angeles man who pleaded guilty to a misdemeanor charge of uploading pre-release Guns N’ Roses tracks was handed one year probation and two months’ home confinement Tuesday after agreeing to cooperate with the Recording Industry Association of America to produce an anti-piracy message.

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 in November and reached No. 3 in the charts.

Cogill faced a maximum of a year in prison. The authorities, however, originally were demanding six months, claiming the amount of infringement equaled $371,000.  The higher the number, the longer the potential prison term.

According to court documents, after Cogill agreed to help produce an anti-piracy public service address with the RIAA, the government withdrew the $371,000 figure and agreed not to fine him. Los Angeles federal authorities in March said the figure was a “reasonable estimate” that gave the defendant the “benefit of the doubt.”  The calculations, the government said, were based on each downloaded Guns N’ Roses track being worth 99 cents on iTunes.

As part of the 28-year-old Cogill’s guilty plea in December, he informed the authorities that he received the music online and unsolicited — a confession prosecutors said might pave the way for more “targets” to be prosecuted.  Cogill uploaded nine songs from the 14-track album on June 18, 2008. Court records show he confessed to the FBI. The case was cracked by an investigator with the RIAA....

Prosecutor Kevin Missakian said in a telephone interview that the public address will either be a radio or television message of “Kevin talking about the importance of protecting copyright holders’ rights in their songs and movies.” Missakian added that the government was “satisfied” with the sentence, but “the government had asked for some jail time in hopes of sending a stronger message.”

July 15, 2009 at 03:18 PM | Permalink

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Comments

First, how does uploading nine songs from a 14-track album at $.99 per song get you to $371,000? I'm missing something.

In any event, I think it's ironic that the prosecutors "asked for some jail time in hopes of sending a stronger message," while this sentence actually results in a message being sent - one that will be tangibly received by people in the real world via advertising. Prison sentences don't send messages. Ever. That requires a communications medium and prison terms are all about isolating the offender from the rest of society, not facilitating communication.

The justice system claims to be constantly "sending messages," but what evidence do we have that anyone receives them? I think they all wind up in society's collective spam filter.

Posted by: Gritsforbreakfast | Jul 15, 2009 3:56:53 PM

I believe the loss figure comes from the number of times other people accessed the material.

Posted by: Soronel Haetir | Jul 15, 2009 4:01:52 PM

I believe the loss figure comes from the number of times other people accessed the material.

Yes...and the industry’s loss figure always assumes that, but for the defendant’s actions, every one of those illegal downloads would have been a legitimate sale. This, of course, is obvious nonsense.

Posted by: Marc Shepherd | Jul 15, 2009 5:19:13 PM

Great observation, Grits. Can I put this in a main post if you do not do so on your home blog?

Posted by: Doug B. | Jul 15, 2009 7:51:29 PM

An act causes a harm with some cost. The same act causes a benefit.

Shouldn't its value be calculated and subtracted from the amount of harm? Isn't file sharing a type of free sample and a form of advertising? If the value of the benefit exceeds that of the harm, the plaintiff should be sanctioned and made to pay the excess benefit to the defendant. Evidence the plaintiff wanted the advertising would include posting the vieo of the song to Youtube or other site.

The failure to calculate the benefit represents unjust enrichment of the plaintiff. If cost is assessed and the plaintiff has no assets, the prosecutor or plaintiff lawyer should be made to pay, as the agent. That the criminal prosecutor is an agent of the entire population of the jurisdiction is a self-dealing falsehood.

Posted by: Supremacy Claus | Jul 16, 2009 7:08:14 AM

SC,

If the band wanted that benefit they were free to do so. That others made that choice for them without permission does not suddenly turn the offense into an act of charity.

As for the legitimate sales issue, I would simply say that such a method provides a readily ccertainable figure, one that a person who commits the crime can easily calculate their exposure from. Which is a whole lot better than other sentencing guidelines in that regard.

Posted by: Soronel Haetir | Jul 16, 2009 8:43:28 AM

SH: There is a contract in law that covers your concern. I have never seen that used as a defense in this area.

Posted by: Supremacy Claus | Jul 16, 2009 4:20:43 PM

I believe the loss figure comes from the number of times other people accessed the material. -agreed in full.

Deirdre G

Posted by: Philippines properties | May 25, 2010 1:22:15 AM

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