Paradise City Lost

Jeff Winkler | March 16, 2009

A solid story from the "Threat Level" at Wired.com:

Federal prosecutors in Los Angeles are pursuing a 6-month prison term for a Los Angeles man who pleaded guilty in December to one misdemeanor count of uploading pre-release Guns N' Roses tracks, according to court documents.

A year ago, Kevin Cogill was arrested at gunpoint for participating in "one of the more insidious forms of copyright infringement." Cogill should certainly be punished for one thing, namely, forcing GNR's Chinese Democracy upon the world earlier than expected. But a six-month prison term and $2.2 million in restitution seems a little much.

Prosecutor Craig H. Missakian said the state's appetite for destruction is justified because:

...Guns N' Roses put their blood, sweat, toil and tears into the creative process... And this country has seen fit to protect their rights – and in doing so foster and encourage the creative process by which all of society benefits."

So what about the rights of an individual, say, the Eighth Amendment, for example? The sentence and fine Missakian is seeking is definitely cruel. What's particularly unusual is how prosecutors decided to put the cost of Cogill's horrendous crime at $371,622:  

This number is based on a sample of 30 out of 1,310 unauthorized web sites that offered the leaked songs to the public...Of those 30 sites, the government said there were 16,976 downloads of Chinese Democracy.

It is most likely that this number represents the number of downloads of the group of 9 leaked songs, for a total of 152,784 downloads of individual songs...It is, however, not possible to say at this time whether the figure represents the group of 9 songs or individual songs.

Notice it wasn't necessarily Cogill who offered the songs. And the prosecution said it gave Cogill the "benefit of the doubt" that the magical number of 16,976 downloads did in fact come from individual songs. The RIAA said it would take just $30,000, if Cogill "was willing to participate in a public service announcement designed to educate the public that music piracy is illegal."

How generous of them.

Last year, Wired reported on donations the entertainment industry gave Los Angeles officials to expand the "definition of a nuisance property from those infested with drugs, gangs, gambling and prostitution to include a property producing, selling or storing counterfeited content."

Boy, there sure is a lot the generosity in paradise city.

Check out the RIAA's hilarious PSA here. Reason Managing Editor Jesse Walker has several pieces about digital copyright law. Great piracy and copyright coverage near, dear and here.

Comments

SpongePaul|3.16.09 @ 5:50PM|#

even at the rate you can buy the songs or .99 he would only be liable for 16,000+ not that what he did was wrong. you used to be able to copy and use and give all the songs you wanted. before the inernet. you could tape whatever you wanted and give it to whoever you wanted LEGALLY. i see p2p as nothing different. all the charges by the riaa are just to get money, nothing more. it protects not one iota of the artists money. and they do not see the settlement money anyway/ it goes to the riaa

|3.16.09 @ 5:51PM|#

Prosecutor Craig H. Missakian said the state's appetite for destruction is justified because:

...Guns N' Roses put their blood, sweat, toil and tears into the creative process...

Wow! I want THAT Prosecutor to defend the people against Eminent Domain! I mean, if he displays such ZEALOUSNESS to defend Guns 'n Roses' intellectual "property", he should display the same zeal to defend ACTUAL property, would he not????

God damned hypocrite.

KG|3.16.09 @ 5:56PM|#

SpongePaul - the difference is, in your example, you had to buy the album first. This was not a case of an album that was purchased. Also, you couldn't, technically, give it to whoever you wanted to legally, it was always illegal, it was just much harder to locate. Plus there's a big difference between burning a couple copies of a cd for your friends and letting a few thousand people download your copy.

Warty|3.16.09 @ 6:01PM|#

I shudder to think of the punishment for stealing Axl's gigirdleuitar.

SpongePaul|3.16.09 @ 6:05PM|#

Plus there's a big difference between burning a couple copies of a cd for your friends and letting a few thousand people download your copy.
___________________________________________

so it becomes a crime when what number of friends downloads the song? .

|3.16.09 @ 6:06PM|#

Just curious, is Reason still deploying the canard that they're not opining on whether copyright laws should be enforced, or have they finally given up that pretense?

Notice it wasn't necessarily Cogill who offered the songs.

So if I steal your SSN and then hand it off to a hundred other thieves, I shouldn't be held liable for the monetary damages they do to you?

SpongePaul|3.16.09 @ 6:07PM|#

"We are pleased to see the RIAA letter finally confirmed, as we have long suspected, that no technical specification for an audio flag, or in fact anything else, exists and that the RIAA has stayed away from the Copy Protection Technical Working Group in part because it has nothing to propose. The letter also confirms that the RIAA's interest lies solely in preserving its existing ways of business, with the hope that it can maximize profits by limiting innovation and undermining long-standing consumer rights.

"As we have repeatedly said, we are prepared to discuss ways to limit the mass indiscriminate redistribution of music over the Internet. Instead, the RIAA wants to ban 'disaggregation,' which it now calls 'cherry picking' in the hope that it can give legitimacy to its policy ideas by using a sweeter name. In short, the RIAA wants to stop consumers from doing what they've been doing since a tape recorder tape recorder, device for recording information on strips of plastic tape (usually polyester) that are coated with fine particles of a magnetic substance, usually an oxide of iron, cobalt, or chromium. The coating is normally held on the tape with a special binder. was first used to capture a song played over the air for private use. The recording industry's campaign over disaggregation is nothing but a thinly veiled attack on lawful Licit; legally warranted or authorized.

The terms lawful and legal differ in that the former contemplates the substance of law, whereas the latter alludes to the form of law. A lawful act is authorized, sanctioned, or not forbidden by law. , private, noncommercial, in-home consumer recording practices.

|3.16.09 @ 6:07PM|#

so it becomes a crime when what number of friends downloads the song?

One.

But it's obviously much worse when it's thousands.

SpongePaul|3.16.09 @ 6:11PM|#

I would also argue that the distrubution of artists on the p2p networks actually helps sales. I get to sample bands i would have never listened to, and if i like them, i can buy the cd. or a much more likley scenario is that instead of the .99 lost from the download transforms into 45-90 dollars when i go see the band i downloaded at the club/arena

|3.16.09 @ 6:19PM|#

SpongePaul, great. Then the record companies that don't allow free legal downloads are hurting themselves. But just because you exercise your property rights in a stupid way doesn't invalidate those rights.

For example, if I leave my lawnmower out in my front yard all winter, you don't have the right to take it and put it in your garage without my permission, even though it doesn't make any difference to me because the lawnmower would have been useless once spring came if you'd left it.

Taktix®|3.16.09 @ 6:23PM|#

Cogill should certainly be punished for one thing, namely, forcing GNR's Chinese Democracy upon the world earlier than expected.

Win for the Winkster!

lukas|3.16.09 @ 6:48PM|#

@crimethink: copyrights are not property rights.

Stagman|3.16.09 @ 6:49PM|#

For example, if I leave my lawnmower out in my front yard all winter, you don't have the right to take it and put it in your garage without my permission, even though it doesn't make any difference to me because the lawnmower would have been useless once spring came if you'd left it.

In your example, you've been permanently deprived of the lawnmower. With P2P, the artist still has the song. While there are some damages incurred by the artist, I would contend that they are extremely speculative. Compounded with the fact that there are many strong arguments that P2P benefits artists, I don't think our society is in a position to say that uploaders should be held criminally liable. Let copy-right holders sue in civil court and make them prove damages; the government shouldn't do their dirty work for them.

|3.16.09 @ 6:51PM|#

In your example, you've been permanently deprived of the lawnmower.

Not necessarily. Perhaps you give it back to me at the beginning of spring, before I would have even used it otherwise. It's still a violation of my property rights.

Also, note that if you hadn't violated my property rights, I would have been permanently deprived of use of the lawnmower by the winter weather's transformation of it into a lawnmower-shaped piece of rust.

Geoff Nathan|3.16.09 @ 6:59PM|#

Also, note that if you hadn't violated my property rights, I would have been permanently deprived of use of the lawnmower by the winter weather's transformation of it into a lawnmower-shaped piece of rust.

And by the same token, dozens of p2p downloads of a song may very well have the opposite effect, transforming a wallflower into a best-seller. This may well happen at least as often as the 'rust' scenario, and it's all speculative, and thus not a fit subject for a criminal court.

Stagman|3.16.09 @ 7:00PM|#

Not necessarily. Perhaps you give it back to me at the beginning of spring, before I would have even used it otherwise. It's still a violation of my property rights.

OK, other than the fact that you're now changing your hypothetical, the fact I was getting at is that my possession of the lawnmower means you do NOT have possession of it. This is not the case with P2P.

Also, note that if you hadn't violated my property rights, I would have been permanently deprived of use of the lawnmower by the winter weather's transformation of it into a lawnmower-shaped piece of rust.

Please explain to me the relevance of this, other than as a very good evidence tending to show lack of criminal intent to a charge of theft of a lawnmower.

ev|3.16.09 @ 7:13PM|#

"But a six-month prison term and $2.2 million in restitution seems a little much" in reference to Cogill's fine.

I can't reconcile that statement with the number given later:

"What's particularly unusual is how prosecutors decided to put the cost of Cogill's horrendous crime at $371,622"

Granted I'm loaded on painkillers for pleurisy...but I don't get it.

Mike Laursen|3.16.09 @ 7:20PM|#

Axl Rose almost ran me over one night as I was stepping off the curb on Santa Monica Boulevard. I'm a big fan, big fan.

|3.16.09 @ 7:38PM|#

Stagman,

The relevance is that even though I'm probably better off if you take my property for a while, it still doesn't mean you have the right to do it. Countering the common argument that the availability of free downloads helps sales of some works.

|3.16.09 @ 7:44PM|#

the fact I was getting at is that my possession of the lawnmower means you do NOT have possession of it. This is not the case with P2P.

It's also not the case when one goes to a barber, gets a haircut, and then leaves without paying; or when someone sneaks into a movie theater without paying. Yet we rightly call these things theft, even though the victim has not been deprived of any tangible property they held before the act. What they have been deprived of is the established compensation for their work -- similar to depriving artists and distributors just compensation for their work by illegally downloading music.

ed|3.16.09 @ 7:48PM|#

is Reason still deploying the canard that they're not opining on whether copyright laws should be enforced?

As one of the few commenters here who still believes in the sanctity of intellectual property, I will answer crimethink's rhetorical question by pointing out that Reason's copyright notice is still at the bottom of this page, albeit in a lighter shade of gray than before. Or is that my imagination?

|3.16.09 @ 7:57PM|#

Maybe if Axel Rose could have gotten off heroin, gotten on his anti-depressants, stoppped being a self important prick long enough for any of his bandmates to stand him and gotten off his lazy, dead ass completed the record when he was still relevent in the music industry, no one would stolen it and uploaded it before it hit the shelves? Just a thought.

A. Rose|3.16.09 @ 8:02PM|#

A year ago, Kevin Cogill was arrested at gunpoint for participating in "one of the more insidious forms of copyright infringement."

Even with an iron fist
All they've got to rule the nation

|3.16.09 @ 8:09PM|#

If ya'll ever wonder where Axl Rose got his dancing stage presence, look up old video of Davy Jones. It's a gas. I suspect he was big on the Monkees on saturday morning in the burbs.

The Bearded Hobbit|3.16.09 @ 8:22PM|#

crimethink,

Both of your examples are instances of violations of contract law, not property law.

.. "not a lawyer" Hobbit

|3.16.09 @ 8:35PM|#

Hobbit,

I can see the barber example fitting the breach-of-implied-contract mold if you stretch it enough. But the movie theater? At what point does an implied contract come into force in that example?

In any case, if contract law is broad enough to cover those situations, it's certainly broad enough to cover downloading music without permission too. So, theft or breach of contract -- either way it's not something a supposed libertarian should be supporting or excusing.

B|3.16.09 @ 9:07PM|#

While it is a bit harsh of a punishment, frankly I am glad that this guy is being punished. I am almost as glad as I am surprised that someone writing for this site has actually claimed that this guy should be punished for violating copyright law and stealing someone's intellectual property rather than claiming he is some sort of libertarian hero for committing theft, which is the usual reaction of the authors on this site.

B|3.16.09 @ 9:13PM|#

"So, theft or breach of contract -- either way it's not something a supposed libertarian should be supporting or excusing."

Trying to convince the editors of Reason that intellectual property should be vigorously protected is the mother of uphill battles. As I mentioned above, this is probably the first article on this site that has called someone who does this sort of thing what they are, a thief and criminal, rather than implying they are some sort of anti-establishment hero entitled to take whatever the fuck they want, with no compensation at all, from the creator.

Estate of Winston Churchill|3.16.09 @ 9:59PM|#

Yo, Missakian, we want our royalties!

Geoff Nathan|3.16.09 @ 10:00PM|#

The debate is precisely to take whatever the fuck they want, with no compensation at all, from the creator. whether someone is 'taking' anything at all from the creator, since no atoms move, and the creator still has his original creation. Some believe that making a copy of a digital work is not the same as taking a physical object, precisely because it's not a physical object. The entities are different in kind, not merely in degree, and thus require different kinds of categorization, and, consequently, a new kind of property law. For an example of how treating 'unauthorized reproduction' as theft leads to absurd contradictions, take a look at

how making documentaries has become impossible

The whole concept needs to be rethought as we move from atoms to bits, and simply chanting 'downloading is theft' won't cut it, when it it manifestly is not. Any more than killing a Second Life avatar (even someone else's) is murder. It may be mean, it may be immoral, but it's not murder, and someone who does it does not deserve life imprisonment or execution, which is functionally what the RIAA is arguing for here.

|3.16.09 @ 10:09PM|#

Yawn. No atoms move when a hacker electronically transfers money out of your bank account and into his, either. I suppose that's not theft either.

Geoff Nathan|3.16.09 @ 10:15PM|#

Wrong. When the hacker transfers the funds they are no longer there. When I download a music file, it's still there. That's the difference between copying and stealing.

lukas|3.17.09 @ 3:58AM|#

Again, crimethink, copyrights are not property rights. For one, copyrights expire, and they are further limited by the extensive fair use doctrine. "Intellectual property" is a legally meaningless term, created by those who want to assimilate copyrights to property rights. Your examples and analogies are invalid: they fail to make that distinction.

Reformed Republican|3.17.09 @ 9:01AM|#

I would also argue that the distrubution of artists on the p2p networks actually helps sales.

Have you listened to Chinese Democracy? I imagine hearing it first did more to harm sales than to help.

Lickity Split|3.17.09 @ 10:51AM|#

The most important lesson from the Brave New World of copyright is this:

If you intend to create something and make money selling it then make sure it is something physical, preferably with moving parts.

Otherwise you gotta give it away and hope for a tip.

That's how it works now, like it or not.

|3.17.09 @ 11:04AM|#

Wrong. When the hacker transfers the funds they are no longer there. When I download a music file, it's still there. That's the difference between copying and stealing.

Still, with the talking past each other.

Whole you haven't taken the song, you have taken the artist's right to be compensated for a copy of the song.

Of course, the argument is whether the artist should have that right, but at least let's be clear.

"Intellectual property" is a legally meaningless term, created by those who want to assimilate copyrights to property rights.

I would disagree. Intellectual property is a sub-class of intangible property, which I don't think anyone would want to do without.

Try this thought experiment: Stock in a corporation is intangible property. Most corporate stock exists only electronically. Practically no one holds stock certificates, which in any event are merely evidence of the intangible property right, not the property itself.

Run your arguments for and against intellectual property as if you were talking about stock in a corporation, and see if you still like them.

I can create a thousand digital shares of Apple stock. Doing so does not deprive any current Apple stockholder of their shares. Have I taken anything from them? If so, what?

lukas|3.17.09 @ 11:54AM|#

"Intellectual property" is a legally meaningless term, created by those who want to assimilate copyrights to property rights.

I would disagree. Intellectual property is a sub-class of intangible property, which I don't think anyone would want to do without.

That may or may not be true, but it is not how current US copyright law is implemented. Instead, copyrights are exclusive rights granted by Congress "To promote the Progress of Science and useful Arts" "for limited Times".

|3.18.09 @ 9:46AM|#

"I can create a thousand digital shares of Apple stock. Doing so does not deprive any current Apple stockholder of their shares. Have I taken anything from them? If so, what?"

Creating extra shares would devalue the shares currently in existence, which doesn't happen with recorded works. So, yes, you would be depriving them of something. Just because ownership of a business is expressed in terms of stock doesn't mean that the business itself is intangible. By contrast, IP isn't a symbol and doesn't represent anything in the concrete world. It is its own end.