A Los Angeles man who pleaded guilty in December to illegally uploading nine Guns N’ Roses songs onto his music site could be thrown in the slammer for six months if federal prosecutors in the case get their way.
Kevin Cogill was arrested last summer after posting tracks on 18 June from GNR’s album Chinese Democracy to his Antiquiet website. He saw the copyright violation charge against him reduced from a felony to a misdemeanor after he admitted to streaming the pre-release tunes.
The album finally arrived (officially at least) in November 2008 following a 17-year gestation.
According to court filings, prosecutors want to see a six-month prison term imposed on the blogger.
"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," wrote prosecutor Craig Missakian.
"That is because once released it is virtually impossible to prevent unlimited dissemination of the work."
The sentence being pursued includes estimated damages based on the illegal goings-on of as many as 1,310 websites that dished out the tracks after Cogill had posted them on his site.
Meanwhile, there’s a significant disparity between the Recording Industry Ass. of America (RIAA) and the FBI on the calculated amount of sales lost as a result of Cogill’s copyright infringement.
The Feds claimed $731,622 based on a “reasonable estimate” in which the defendant was given the “benefit of the doubt” in its calculations that each infringement would have been worth 99 cents on Apple’s iTunes, according to court documents.
However, the RIAA claimed a $2.2m loss based on a “$6.39 legitimate wholesale value” for the nine songs being downloaded around 350,000 times.
"The defendant's conduct here was even more egregious and harmful than the typical music piracy case, since the music he unlawfully distributed had not yet been released to the public," wrote RIAA anti-piracy veep L Carlos Linares on 10 March.
"The unlawful distribution of pre-release sound recordings causes irreparable harm to a record label's marketing plan - typically developed with great care and at significant cost - by utterly eliminating the label's ability to control the public presentation of the artist's work," he opined.
The lobby group, which represents big players in the music biz, said it would accept $30,000 instead of the $2.2m claim if Cogill “was willing to participate in a public service announcement designed to educate the public that music piracy is illegal".
The blogger’s attorney, David Kaloyanides, told the court there was “no way to determine how many downloads were made" off the back of Cogill’s posting of the nine songs.
He will be sentenced on 4 May. Wired has more on the numbers game between the Feds and the RIAA here as well as copies of the various documents that have been filed in the Los Angeles court. ®