The battle to control online music has taken a particularly outrageous turn. As if private censorship, fines, intimidation and blacklisting weren't enough, now the Department of Justice — for the first time we're aware of — is threatening to throw a man in jail for noncommercial music-sharing.1

At issue is a pre-release leak of the Guns N' Roses album Chinese Democracy. In August 2008, blogger Kevin Cogill was arrested at gunpoint at his home in Los Angeles. He was charged under the 2005 Family Entertainment and Copyright Act with posting tracks from the album prior to its release date. In October, Cogill plead guilty [PDF], and last week the government asked for a six-month prison sentence.

The sentencing request [PDF] misconstrues the facts and technology in question.

At the heart of the DOJ's case is the assumption that Cogill was the original source of the album leak, and therefore bears full responsibility for every subsequent download of the album until its official release in November 2008.

In fact, it appears that leaks of the tracks in question had been available for many years before Cogill posted his copies in June 2008. As noted in Cogill's lawyer's response to the request [PDF], the band began work on the album in 1994 (!), and switched studio affiliations and band managers several times in the subsequent 15 years before its release, leaving countless opportunities for leaks. Anecdotal evidence exists of CD leaks "kicking around since 2001 or 2002."

A quick search of popular bittorrent trackers reveals that a torrent of many of the tracks in question was available in March of 2007, a full 13 months before Cogill's supposed initial leak.

While Cogill did post copies of the tracks (received from an anonymous source on "internet chat") to his music blog Antiquiet in June 2008, the post would have had little or no impact on the global availability of leaked copies. The tracks were posted for streaming-only, with no direct-download link. They were available for only twenty minutes before the website crashed and the files were removed.

It's true that it would have theoretically been possible for someone to rip all nine tracks into MP3s during those twenty minutes. But, because the album had been available through other channels for so long, it's improbable that anyone would even bother to attempt ripping the Antiquiet streams, and certain that it would have made no difference in the album's availability even if someone did.

Of course, it's easy to see why the DOJ (and the RIAA, the real motivating force behind the prosecution) ignore all this. By casting Cogill as the master-leaker, they can attempt to saddle him with responsibility for 375,376 illegal file downloads and $2,236,500 in damages to RIAA member companies. (See David Kravets' excellent article in Threat Level for a breakdown of the ridiculous mathematics at work here.) The flaws in these conclusions are familiar to Deeplinks readers: Not every download constitutes a lost sale. Many industry experts believe pre-release leaks actually increase sales. The RIAA has a long history of playing make-believe with the costs of music piracy. Too bad the DOJ has wasted your tax dollar playing the same game.

The judge in this case, however, can opt-out of the game. We urge the judge not to add jail time to the long list of unreasonable penalties for sharing music.

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