Yo, Guns N' Roses Leaker! Fear the Band, Not the F.B.I.

The feds may have their hooks into him, but Guns 'N Roses leaker Kevin Cogill's real headache is still the band. Chances of him getting any jail time are slim, but Guns 'N Roses could bankrupt him -- if they want to.

"There's a specific law, the Family Entertainment and Copyright Act, that deals specifically with pre-release material -- the rationale being that (leaking this material) prevents the owner of the copyright from getting the first release," says entertainment lawyer Howard Rubin, a partner at Goetz & Fitzpatrick in New York. "The first release is always the one that's going to get the most profit for the person who owns the copyright. To take that first opportunity from someone is more serious, and is usually pursued criminally to try to prevent that (from happening again)."

Cogill could face both criminal charges from the federal government and a civil copyright infringement suit from the Guns 'N Roses camp. The criminal charges, which have already been filed, could cost Cogill $250,000 and up to three years in jail. Civil charges brought by Guns 'N Roses could prove more costly, even in the absence of any actual damage to the band. Statutory damages for releasing the material with intent or malice are up to $150,000 per song, for a total that could exceed $1.3 million.

Cogill could end up owing even if he shows that his leak of the songs actually helped the Guns 'N Roses' bottom line by generating press coverage for the band. The statutory damages do not take into account whether any actual damage was done -- only that the infringement was intentional or malicious, which Rubin says would be relatively easy for Guns 'N Roses' lawyers to prove.

So far, evidence points towards leniency, as far as the federal case goes. Especially important, according to Rubin, is the fact that the feds released Cogill on a signature bond, which means he didn't have to put up any money, but rather agreed to pay a $10,000 fine if he misses his preliminary hearing on September 17. If the feds were looking to prosecute Cogill to the maximum extent of the law, he said, Cogill's bail situation would have been more severe.

"In my opinion, and I'm assuming it's his first offense," says Rubin, "I wouldn't expect significant jail time, but I would expect a fine and some jail time. It's a felony, not a misdemeanor, and the federal courts have guidelines depending on how much profit was made, the seriousness of the crime and whether the person cooperated," adding, "He may end up getting probation; I would be shocked if he got anywhere near three years in prison."

Assuming the federal case goes as smoothly as Rubin expects, the next potential threat to Cogill comes in the form of a civil suit from Guns 'N Roses (right), with those potential $1.3 million or so in statutory damages. However, the band may not want to risk becoming the next Metallica.

"The band is in the position now where they can start a civil action, and they would be successful," says Rubin, "But how are their fans feeling about this? They'll have their own public relations issues as to whether they're going to start an action here."

The band will not benefit financially from the criminal suit, so if Axl and co. want compensation, it'll have to come from a civil suit -- regardless of any potential backlash. But Cogill, a 27-year-old Los Angeles web designer, most likely cannot pay the full extent of the damages. "What does this guy have in terms of assets?," he asked. "What can they collect?"   

In his initial post with a link to the .zip file, which he took down after receiving a cease and desist letter, Cogill said that one reason he leaked the tracks was that Guns 'N Roses had apparently hoarded them for so long.

"I always said that the more that Axl and Geffen jerked around trying to figure out how to release this finally finished album that we've all been waiting over 13 years for," he wrote, "the greater the chances would be that it would slip out of a pressing plant or office somewhere and wind up in the hands of some asshole with a blog. So... Hey, I told you so."

by Eliot Van Buskirk for Wired.com