No one can say what 27-year-old Kevin Cogill expected when he apparently posted nine songs from an unreleased and long-awaited Guns N’ Roses album called “Chinese Democracy” to his Web site earlier this summer. It could have been anything from monetary gain to a desire to be the first to distribute the long-anticipated songs.
However, he likely didn’t expect to find the FBI at his door with an arrest warrant.
That’s exactly what happened at the behest of the Recording Industry Association of America (RIAA), which alerted the federal enforcement agency of Cogill’s suspected transgression.
Indeed, Cogill may be guilty of more then mere online music piracy. If the charges are true — and according to reports, he has admitted that he did in fact post the songs — he has run afoul of a little-noticed law that has been on the books since 2005. This law, the Family Entertainment and Copyright Act (FECA), makes it a federal crime to pirate music and movies before they are released to the public.
The Los Angeles area resident was ordered to appear in court for a preliminary hearing on Sept. 17
Welcome to the Jungle
If the allegations against him stand true, Cogill could be in serious trouble, especially considering the federal nature of the alleged crime.
“The 2005 legislation is very clear — if you have gotten a hold of pre-released copyrighted material, and if you know that material is destined for commercial distribution, and if you make it available to public willfully, then, yes, the FBI does become involved in the investigation and arrest,” Michael M. Ratoza, a lawyer at Bullivant Houser Bailey and an adjunct professor in copyright law at the University of Oregon School of Law, told the E-Commerce Times. “And there is plenty of space in federal prisons,” he adds.
Indeed, there is the expectation that Coghill is likely to pull some jail time even though there have been few prosecutions similar to this one.
“I think there’s a chance that he’s not going to end up just with community service,” William Munck, chairman of the legal firm Munck Carter, told the E-Commerce Times. “Someone’s got to go to jail eventually to make this stop,” he said, referring to the monetary damages that copyright holders experience when their work is illegally disseminated before it has even had the chance to be legally sold.
“Part of the Act was written exactly for this purpose — to stop people from loading the Internet with any type of pre-release work without the consent of the artist,” he continued. “Whether it’s music, movies or anything else, the thought is that the first release is where they make the bulk of their money. By pre-releasing work without consent, you’re affecting an artist’s ability to make money.
“This isn’t Napster but it’s the same scenario.”
Cogill could also end up bankrupt if Guns N’Roses seeks to recoup their losses through civil litigation, he added.
You Ain’t the First
Cogill’s specific circumstances — he was allegedly able to get a hold of the songs before publication and put them online so that they were widely disseminated — are not applicable to everyone who seeks out copyrighted content to upload it to the Internet. However, his possible legal fate could leave many Internet users wondering whether they could be subjected to harsher penalties than those normally meted out by the legal system and the recording industry.
Typically, when an organization like the RIAA claims to have caught someone illegal trading copyrighted material online, an offer is made to settle the matter for a few thousand dollars. For those who refuse to settle, the exposure is far greater.
Cogill’s arrest, however, may signal an even higher level of enforcement.
“I think criminal investigations are becoming more common because civil penalties are not stopping the piracies,” said Munck.
“This is definitely the high water mark in infringement prosecution,” William M. Hart, a partner at Proskauer Rose, told the E-Commerce Times.
“But it is important to remember that years ago any sort of broad public distribution of copyrighted content — particularly entertainment content — was subject to criminal action.
“We have become inured to the fact that distribution of copyrighted content over the Internet is illegal. Instead it is now perceived as a victimless crime.”
However, mass arrests of teens, college students and anyone else trading music for personal use is highly improbable. Cogill’s arrest is unusual since the material he’s suspected of distributing was intended for commercial distribution. That knowledge is a required element of the crime, Douglas Panzer, an intellectual property attorney at Caesar, Rivise, Bernstein, Cohen & Pokotilow, told the E-Commerce Times.
“That being said, the fact that this album has been in the works for over a decade may give Cogill some room to argue that no reasonable person could believe that it would ever be released,” he said. The likelihood of that argument succeeding is anyone’s guess, he added.
Get In the Ring
What is clear, though, is that this relatively recent addition to the Copyright Act, which provides for imprisonment of up to three years and fines up to $250,000, is in force and ready to be used. “The political machinations behind the enactment of the law clearly trace back to Hollywood, but that is a tangential argument,” Panzer said. “The law is on the books, and the copyright owner called authorities for enforcement of the law.”
However, Panzer doubts this is a new tactic that the RIAA intends to use regularly. “The law does have a provision that arguably could be used against file sharers [17 USC 506(b)], but there is a requirement that the infringement was ‘for purposes of commercial advantage or private financial gain.’
“It would likely be an uphill battle for the RIAA to show that the average 14-year-old is using file-sharing for financial gain, not to mention a public relations disaster. The fact is, this situation — the release of unreleased, new material — is a different concern, and one that either the RIAA in general, or Guns N’ Roses more specifically, takes very seriously.”