By Skwerl at 12:24 PM Monday, January 6th 2014
Once and for all, here’s the complete story of how Jimmy Iovine’s copy of ‘Chinese Democracy’ made it into my hands, and everything that happened afterwards.
On June 18th, 2008, I sat at my desk in an office building in a part of LA called Ladera Heights, which is sort of like a ghetto Culver City. This means nothing to anyone living outside of Los Angeles. Whatever, just picture downtown Atlanta, with better Mexican food.
Around 1:00 or so, I got a message from a person in “the industry.” I’m going to protect this person’s identity by referring to them as a male named Steve, with no particular association to speak of. But I will say that if you were to Google this person’s real name, you’d have to go through a couple pages before finding anything related. Steve has a cool job, but as far as the media is concerned, he’s just some guy. Nobody special. At the time, even the bands Steve worked with were pretty obscure, and none were at all related to GNR.
I forget exactly what Steve’s message said. Something to the effect of, “Are you a Guns N’ Roses fan?” And of course I said yes. He started sending me a file, roughly the size of an album. This was completely unexpected. Why me? I don’t know. Maybe Steve had read this editorial I had published on June 6th, predicting the album would leak. I knew that the album was done. And just sitting around. But in that moment, I didn’t let my mind go any further than verifying what I thought I was receiving. I didn’t think Steve was bullshitting, but this was a unicorn with a couple of holy grails up its ass. I was… skeptical.
But he sent me nine tracks that were without question the bulk of Chinese Democracy. I had heard most of them, in one form or another, but nothing had sounded so close to finished. The story I got from Steve was that a year prior, a friend of his, a courier of some kind, walked into Jimmy Iovine’s office, and walked out with a CD. Ten tracks; these nine, plus another version of Better that I never bothered to get from Steve. These mixes were done by Andy Wallace. It was never clear if Steve’s friend stole the disc outright, or conned an assistant into trusting him with a copy. Steve seemed to think it was the former. I assumed the whole story was bullshit. Who knows. Hearsay.
Within 30 minutes or so of confirming that the tracks were legit, they were up on Antiquiet.com. I didn’t put a ton of thought into this act, but I knew this much: As I’ve said, If I were to simply announce that I had the tracks, no one would believe it. My intent was not to spread it, but to allow it to be played through a streaming player to obliterate any doubt. I knew I was starting a fire, and that original editorial does a pretty good job of laying out the mindset behind my actions. But I didn’t think it through past that.
At 2PM, I sent two brief emails out, to Maura Johnston, who was at Idolator at the time, and to Wookubus at ThePRP.com. I knew that’s all I needed to do to get that shit splattered over every music site on the internet. According to the FBI, I threw a link up on Digg as well. Fair enough.
I texted my girlfriend something about what was going down, that I’m sure ended with LOLZ. She was working in politics at the time, and at that moment was pretending not to be bored at some super-liberal socialite’s circle jerk brunch in Beverly Hills. This turned out to be a small bundle of kismet, but we’ll get to that in a second.
Within a matter of minutes, Idolator and ThePRP linked the post, and the news spread like a nuclear blast across the whole internet. Antiquiet buckled under the traffic almost immediately. I had to reboot our poor little server just to have a chance of logging into it, and the only way I could bring Antiquiet back to life was to disable a ton of features, and remove the audio player & GNR tracks.
So at that point, Chinese Democracy had come and gone, without any incident besides a sharp traffic spike.
At 3:00 or so, I got a call from a guy named Fernando Santos, the son of Axl’s manager and primary babysitter Beta Lebeis. He identified himself as someone in the “Guns N’ Roses camp,” and talked tough. He asked if I had put up some Guns N’ Roses tracks. I said I had. He asked if I was going to put them back up. I said sorry, I don’t think I can. I was being a smartass, as if he was a fan wanting to hear the tracks. He told me I shouldn’t. I blew him off and he hang up.
The second call I got was from Andy Greene at Rolling Stone. He wanted to interview me or something. My memory is a little fuzzy, but I think I blew him off at the time. I think it was just a voicemail that I got and didn’t have time to respond to.
At 4:48 PM I got an email from Laurie Soriano at Davis Shapiro Lewit & Hayes, the law firm representing W. Axl Rose. It was confidential, but you can imagine what it said. I didn’t blow her off. I replied respectfully: …We have not replaced the stream, nor do we intend to. Furthermore, I’ve completely deleted the streaming files from the server, and even my personal computer. I apologize for any inconveniences, blah blah blah… I finished my workday, went home, moved on. I ignored the media requests that came in, pretty much. I think I told Bloomberg to email me questions if they wanted to, but they didn’t. There was a funny conversation with my girlfriend, but I’ll come back to that later.
Anyway, that’s how June 18th, 2008 went from my perspective in Los Angeles. Now I’m going to back up to 3PM, and tell another part of story that started in Sweden, where Jarmo from the GNR fansite Here Today… Gone To Hell came across news of the leak. He immediately notified Fernando Santos, who checked it out, and then did a Whois lookup on Antiquiet.com to get my phone number so he could talk tough to me.
At 3:20, Fernando emailed Laurie Soriano. His email began: I just got off the phone with Mr. Kevin Skewerl, and asked him to take down the leaks and make sure they don’t go back up. I said that the leaks would do nothing but slow down the process and that we would appreciate if he would take down the player… All of this was bullshit. The leaks were long gone before Fernando called, and there was no ethical lecture of any kind. Previously, I told at least one interviewer that Fernando had told this lie to the FBI, as that was my understanding at the time. Today, as I read the FBI’s classified notes from a meeting with Fernando in August, I can see that he told them the truth, rather than what he told Laurie Soriano in June. So I’ll award some credit to Fernando, and upgrade him from criminal liar, to regular liar. And I digress…
Back to the story. David Benjamin at Universal Music’s Anti-Piracy Office sent all of this information, along with my email correspondence with Laurie Soriano, and both of my Antiquiet articles (the one from June 6th and the leak), to Michael Connelly, RIAA Supervisor of Investigations, West Coast Region. At 5:39 PM on June 19th, Michael Connelly sent all of this to an FBI task force agent named Tommy Rackleff. Rackleff concluded it was sufficient information to suggest a violation of Federal Statute 17 USC §506(a)(1)(c). The report was sent to FBI Special Agent Jensen Penalosa, who was briefed and assigned to my case.
17 USC §506(a)(1)(c) refers to a very specific type of copyright infringement: Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.
The funny conversation I had with my girlfriend was about Joel Stein, who writes for TIME and the LA Times, who you may know from his snarky commentary on shit like VH1′s I Love The 80s. He’s like a slightly more credible, slightly less funny Michael Ian Black. His TIME pieces are, for the most part, very thickly veiled satire, making a complete joke out of the most serious of topics, and a lot of people hate him for it. Naturally, I wanted to hang out with him, and my girlfriend wanted to bone him. Well, turns out Joel was at that socialite’s brunch, expecting to do a piece on the host. When he approached my girl (or when she approached him, both scenarios are equally understandable), the conversation turned to what I was up to, and at that point he decided he’d like to write about me instead. This actually strained various work relationships for my better half, but hopefully she won’t mind me laughing about it now that she’s long gone from that world.
So on June 19th, I did my initial press tour. This apparently consisted of little more than shooting the shit with Joel for awhile. I thought I had spoken to Wired, or called Andy Greene back that day, but I can’t find any evidence of any other interviews going down, at least until a week or two later when things really started heating up.
Across town, coincidentally, an old friend of mine named Charlie Amter was interviewing Slash at Canter’s Deli for the LA Times. My leaks came up. Some portions of this interview were eventually published, including, I believe, the part where Slash told Charlie that I was a thief, and that I should “rot in jail” for what I had done. I remember laughing at that bit, as it’s common knowledge that Slash was an unabashed actual thief at the same age, and that in fact he would proudly tell anyone who would listen that his iconic top hat was shoplifted from a store in Hollywood. At some point in between illegally dubbed cassette tape trades, I’m sure.
On June 20th, Mr. Penalosa performed a search for my name in the FBI’s databases. They found I had no car or driver’s license, and several (awesome) criminal charges: On 2/12/05, I was arrested for drunkenly waving a fake gun around in Hollywood. From Philadelphia, there were 3 counts of institutional vandalism, 8 counts of something called “criminal mischief” (with 7 counts of criminal conspiracy to commit said criminal mischief), and 1 count of “prowling at night.” What can I say, I can’t be tamed.
At that point, the FBI investigation into all of my shit was officially underway. Though if I call it the FBI investigation, it would be misleading not to clarify that the investigation part was actually carried out by Tommy Rackleff at the RIAA. The tail wagged the dog, for the entire ride.
The following people attempted to provide information about the leaks to Rackleff, who forwarded it to Jensen Penalosa: David Benjamin at Universal Anti-Piracy; Brad Buckles, Executive Vice President of Anti-Piracy at RIAA; GNR road manager & ally Del James; a fan named William; Longtime GNR leak hunter Mr. Saint Laurent; a fan named Maribeth; Laurie Soriano; Fernando Santos & Beta Lebeis.
Most of the information sent to the RIAA was bullshit and/or pure speculation. For example, this guy William, whom I know absolutely nothing about, emailed Del James, saying that he had “access to information that may be of use in locating the original source” of the leaks. He claimed to be “convinced” of the source, with sufficient proof to back up his theory. William
claimed implied that I received the songs from Billy Howerdel of the band A Perfect Circle. Ultimately, his evidence was little more than the facts that Billy and I are friends, and he was one of many people who had worked on Chinese Democracy. As a result, a large portion of the investigation was focused on Billy, before it was concluded that Andy Wallace’s mix didn’t even exist until long after Billy had moved on. To this day, I don’t know if Billy ever had any idea how close the FBI was to knocking on his door because of some dipshit named William and his wild bullshit theory. Sorry, Billy, and anyone else who may have been irresponsibly implicated. Lord knows I have plenty of other friends that worked on the album, none of which had anything at all to do with any of these leaks.
Mr. Saint Laurent is an interesting player. As long as I’ve known about this guy, he’s lied about having leaks, in order to get leaks from others in scam trades. This hustle worked out for him in 2007, when he obtained some tracks he then leaked, ironically gaining credibility in the process. In June of 2008, he was telling anyone who would listen that he had obtained the tracks that I leaked, previously, from someone in Portugal, and that more leaks were coming. Maribeth was passing a lot of MSL’s wild claims (and some others’) to Beta, who then led pre-emptive strikes against MSL and all of the big talkers on message boards, through Laurie Soriano and the RIAA’s goons. I should thank MSL for sending my accusers on a few wild goose chases I had fun learning about. In the end, everything that the RIAA and the FBI checked out turned out to be hot wind blowing over bullshit.
Brad Buckles spoke about the monetary damage of the leaks. UMG had invested a sum of $12 million up front in the project. Buckles stated that these were real dollars that were spent, that might never be recovered because of the damage done. One email closed with: Looking at it this way… properly displays the role of the labels as venture capitalists that stand to [lose] millions when things like this happen. It’s a respectable opinion.
On June 23rd, while most of this information was still being collected, I received a visit at work from Jensen Penalosa and a female agent named Robin Davis. My “Mulder & Scully,” if you’ve followed any of my previous retellings or interviews. I had forgotten the female agent’s name entirely until looking it up just now, though I’ve remembered Penalosa’s, mostly because his name has since become code for The Man, between Johnny and I. Also because he has… How can I put this? Kept in touch.
I have the FBI’s notes from our initial meetings and phone calls, and nothing in them hasn’t already been stated here. I didn’t tell them anything about Steve, the courier, or Jimmy Iovine’s CD, because at the time, I hardly believed any of it to be true. They wanted to know technical details. Forensic stuff. What computer did I use, what version of Linux does my web server run. Stuff like that. I invited them to my apartment the following morning. Despite the first visit being a surprise, I took it far less seriously than it actually was, and remember it as cordial and mostly amusing. I’m pretty sure my first words to them, when I saw them sitting there, were something like, “what are you guys, FBI agents?” The visit to my apartment was no more intimidating. I voluntarily lent them my laptop for a couple of days so they could copy its hard drive. They promptly gave it back after doing so. They did have some questions about why it appeared to have been recently wiped, which I answered as best I could.
These early visits have been called “ambushes” and “raids” in various reports, and some of these statements were made using my own words. I can be sarcastic. That is not how I ever would have seriously characterized them.
The RIAA’s investigation continued through July and August. On June 26th, Penalosa accessed my FBI records once again. There were a few brief phone calls. On August 21st, Mr. Penalosa called a good friend of mine, who I’ll refer to as Dan, who was hosting Antiquiet.com at the time. Dan provided server logs from June 18th, and confirmed the IP address that uploaded the files. Once again, sorry for the inconvenience, Dan.
I have the server logs in front of me now, and they confirm the timeline as I remember it. The logs show all of the large data traffic (audio files) exploding between 2PM and 3PM Pacific time.
On August 23rd, I spoke to Mr. Penalosa over the phone. Apparently he wanted to know if I had shared the tracks with anyone else in my office. I told him I hadn’t. On August 25th, Penalosa spoke to Fernando Santos, and got the more true version of his call to me.
The next part of the story is not told in my files, so I’ll have to re-construct it from memory, though it’s a vivid one that I share with some witnesses. On Monday, August 25th, I was speaking with Mr. Penalosa over the phone, and I asked him some sort of casual curious question, to which he replied, “I can’t discuss any matters going before the grand jury,” or something very close to those exact words. I had been flippant up to this point, not taking any of it too seriously, but the phrase grand jury scared me. I knew what that meant. I told Penalosa something I had said before: If he needed to arrest me, he could just call me, and I would come down promptly and willingly. I wanted more than anything to avoid a big scene at my work, or apartment complex. And then I started looking for lawyers.
The first few lawyers I got a hold of ran through a script. Most were civil attorneys. None of them knew anything about my case, and would only speak in abstract general terms. None seemed willing to fight, only to represent me during my imminent ass fucking. I needed federal, criminal defense. And fuck me, I found my guy at federalcrimesdefender.com. When I spoke to David Kaloyanides, I knew I had found the mushroom cloud laying motherfucker I needed. His voice was booming, like the voice of a God. He knew my story already. He had a plan. We’d work out the money somehow, because he told me this one was going to be fun. I’m a Kinsey zero, but I was in love with this guy. We set an appointment for that Thursday (three days later). And then he told me to shut the fuck up. Actually, I’m sure he told me that before anything else. He told me to stop talking to the FBI, to tell them that I had a lawyer, and that as soon as I did so, they will stop being nice.
The following day, Penalosa called. I told him I had found a lawyer. He calmly accepted this news, and hung up the phone. As if he was ready for that, and had his next move all ready to go. I knew shit was about to go down, but my scheduled meeting with David kept me calm for the time being.
That night, I dreamt that FBI agents stormed my apartment, hauling me off in handcuffs. I was awoken from this dream by FBI agents banging on my door, at 7:00 AM, on the dot. It took me a second to un-blow my mind, and then I answered the door, in my boxers. There were at least six handguns pointed at me from at least six different angles. Scary yes, but unfortunately, far from the first time, and FBI agents are slightly less prone to accidental weapon discharge as my old friends in the Delaware County local police forces. Jensen Penalosa was holding one of the guns, aimed the left side of my face, about 30 feet away. I looked at him, and told him that all of it was unnecessary. They yanked me from the doorway, handcuffed me, and then escorted me to a black car. I didn’t say anything else. They didn’t “raid” my apartment.
It was a long, quiet ride from Culver City to the federal lockup downtown in LA morning traffic. The car pulled into a strange garage / basement thing. I was taken to an office there, booked, fingerprinted, swabbed for DNA. I forget if there was a strip search. Maybe. Certainly not a cavity search. Nothing traumatic. There was a poster though, in the lobby, that I’ve talked about. It showed, I believe, “Hanging Judge” Isaac C. Parker, with the phrase “Let No Guilty Man Escape.” In this building, criminals were executed by the state, and this was a matter of pride.
I was taken to a cell with a bunch of other hardened criminals. I hit it off with this guy Cerrano, who had snuck back into the country after five deportations, and pistol-whipped a cop. Nice enough guy. A kid in his 20s was in deep shit for mailing meth or something across state lines. When I told them I was in there for some MP3s, we all had a laugh. We drank orange juice out of cartons, and avoided any unwrapped food that might have cop dick in it.
My primary focus, however, was on pretrial. This is a crucial, but not very well known part of the court process, through which a lot of people can be saved, or super fucked. As you wait to be arraigned, you typically are given the opportunity to have a pretrial interview, in which you will give a court secretary your background, work status, financial situation, etc. This information is used to help the judge decide your fate, and important details like your bail. This information is generally unbiased, insofar that it comes directly from you, and not an officer or prosecutor. Sometimes, the pretrial interview doesn’t happen, for whatever reason. In these cases, the judge will simply go on what he has been told by the prosecutor, and your lawyer, or public defender. Whether that’s the way it’s technically supposed to go, or not.
My meeting with David was set for the following day, so technically, I didn’t yet have a lawyer, and was given a public defender. Between you and me, most public defenders are as good as most lawyers, unless you really need to get lucky, or prove a nuanced point about your disagreement with Johnny Law. So my guy was fine for the time being. His name was Gabe, I believe. However, the court was trying to get me in front of a judge before I had had my pretrial interview. I fought until I got it, and that fight consumed most of my day. Had that not have been an issue, I would have been out by lunchtime.
After pretrial, still in cuffs, I was taken to a courtroom, or more specifically, the side of a courtroom, which had a giant sheet of plexiglass in front of it, as if a hockey game was about to break out between the opposing legal teams. In the gallery sat Johnny and my girl. As I was walked in, Cerrano was being walked out, also in handcuffs. He spotted Penalosa and Davis sitting by the penalty box, and nodded towards me, saying something like, “yo, be good to my boy.” I loved that shit.
Gabe had me plead not guilty just as a matter of formality, to keep my options open, and, thanks to my pretrial interview, I was released on a signature bond. This meant that my girlfriend signed a statement saying I wouldn’t disappear, or else she’d have to pay $10,000. Luckily, at least at that time, killing me wasn’t worth $10,000 to her. The judge was suprised that they arrested me at gunpoint. He actually said, “I don’t understand why this wasn’t a summons case, like I recommended.” Tell me about it. Anyway, a bunch of news outlets reported that I had “pled innocent,” (which is not a thing) which a lot of people considered ridiculous, but it was meaningless.
The following day, I met with David Kaloyanides. We were facing a criminal copyright charge under 17 USC §506(a)(1)(c) as Tommy Rackleff had recommended, but David pointed out a rather obvious flaw: For that statute to be applicable, the work would need to be demonstrably headed towards a public release, and for it to apply to me, the court would have to prove that I had reason to believe that it was in fact being prepared for commercial distribution. In other words, the US government would have to prove, in court, that Chinese Democracy was really coming. And no one at the RIAA or the label had informed the government that these songs had been lying around for 14 years. Only that they had cost $12 million. The government would soon come to realize the RIAA had given them a pretty shitty case.
David slashed his usual rate, and only charged me one fuck ton of money. I pulled crazy strings and borrowed cash to make the payments, and busted my ass working to get money in the bank on top of that, just in case I wound up in jail. I had a daughter on the way, and providing for her was the most important thing to me.
It would cost exactly one more fuck ton to take the case to trial, if I wanted to. But we were taking it one step at a time. The first fuck ton would cover everything up to a trial.
If you Google my case, you’ll find reports of the various court appearances. I don’t remember those. They were meaningless, and largely described by a media ignorant of the true legal ramifications (or lack thereof). What I actually remember is a series of meetings, every couple of weeks, for a year and change. These meetings would happen in one of two places: A coffee shop in Chino Hills with my lawyer, an investigator we hired, and a paralegal, or, behind a closed door downtown, just David and I and the Assistant United States Attorney assigned to the case, my prosecutor.
David made me feel invincible. He knocked out any talk of a felony copyright charge in the first round, and the entire battle from there on out became, more or less, a matter of the US government trying to save face by figuring out how to slap me with a misdemeanor. They had set out to string my body up for all would-be music pirates, but David and I shared a resentment for the fact that the government of this country that we love so much let a bunch of lobbyists do their homework for them. We were out to make a nuanced point about our disagreement with Johnny Law.
In one of the court appearances that was reported on, I pled not guilty to the new charge, the misdemeanor, again as a matter of formality. Most news outlets reported it, once again, as “pleading innocent” (again, not a thing), and didn’t even realize that the charge had suddenly gone from a felony to a misdemeanor. They were still saying I was facing three to five years, when in reality, the misdemeanor brought everything down to a statutory maximum of one.
It could have all went away at any time if I gave up a source. A bigger fish. I didn’t want to do that, but I was willing to help them put some pieces together, if I could protect my contact. And we managed to do so through an expensive legal maneuver that involved David representing Steve, who would provide information to our legal team, on record only as an anonymous confidential informant, or CI. We would conduct an investigation into the courier story, and provide the government with enough to do right by their sugar daddies at the RIAA.
We started with a list of people that had a copy of the record, according to the FBI’s information. It was very short. Three names: Andy Wallace, whose relationship with GNR was apparently strained for a time due to money owed to him; Merck Mercuriadis, Axl’s former manager, who had played the songs for Interscope in 2006; and, impossibly, Mister Saint Laurent, who had claimed to have gotten a copy from “some guy in Portugal.” One of these things is not at all like the others, and as I said, MSL’s claims were discredited and removed from this list.
Our position all along was that “the source” would have to be a name on this list: Someone who obtained the album legitimately, and then passed it to someone on the outside. That’s who we were willing to turn over. Everyone else in the chain were nothing more than middlemen.
While we explored the various possible sources, players, and their motives, in parallel, we had a lot to sort out for the basis of our case. We were acting as if we were going to trial, preparing for anything. There were a number of developments and discoveries in our arsenal. There was the copy of Chinese Democracy on 12″ vinyl that I bought at Amoeba Records in San Francisco, a bootleg. After the RIAA’s spotty discovery, it was a revelation to the government that any of these tracks had leaked before in any form. Let alone the facts that, first, not only were most of these tracks “out there” in some form for years, but second, that all but a couple could be casually purchased in a record store, here in our own backyard, far from a hot commodity or some underground secret. Sure, the Andy Wallace mixes were a little different. Fans care. But would a judge?
There was the idea that we could show, in court, evidence that leaks of music can often boost sales, and that the major labels have often orchestrated their own leaks in order to do so. The government would have to prove that the leak wasn’t intentional, or, beyond a reasonable doubt, so grossly negligent as to be “asking for it.”
Then there was the Best Buy deal. Chinese Democracy was finally released on November 23rd, 2008, exclusively at Best Buy, about 20 weeks after my leaks. That’s from no concrete plans, to going up on shelves. Pretty quickly, especially if we’re talking about the poster child for album delays. What did we know about that deal? Best Buy paid a large up front sum for the exclusive, at least seven figures, by all reports. We obtained evidence showing that the value of that exclusive was determined largely by the media hype my leaks had created. UMG had shown Best Buy charts of Google traffic for Chinese Democracy that started spiking in June, and was riding high. The iron was hot, so to speak. And before Best Buy got on board, the only heat source was the fire under my ass.
We started noticing a peculiar trend. Maybe it was all coincidence, maybe none of it was, or maybe something in between. But every time there was a major development in my case, there was a promotional event that seemed to capitalize on it. I would attend a scheduled court appearance, and a single would drop. Or the album art would be revealed. Or there was a tour announcement. I forget what lined up with what; at the time, I wasn’t sure if it was calculated, or our imaginations getting out of hand. So I wasn’t paying very close attention to that thread, but it was one that David and our PI would point out regularly.
What I do believe is that UMG used my leak to their advantage. The fairest thing I can say is that maybe the damage I had caused outweighed the benefits of what I’d done. Maybe not. Maybe it’s a wash. We couldn’t do that math without the evidence. It would have been really interesting to figure that out in court, and inform that open debate. But UMG went to Best Buy armed with little more than the attention I had ignited.
At some point in 2008, I’m not sure when, we found an email from Laurie Soriano to Jensen Penalosa, telling him that it had come to her attention that Jimmy Iovine “does in fact have a copy” of the tracks, and that his name should be added to the list of possible sources. Yes, this letter did slip through the cracks, but I wouldn’t be quick to cry cover-up. The pile of data we had collected was in no way organized, and in a manner of speaking, there was no rhyme or reason to the order in which the puzzle pieces were snapped into place. I will note that the AUSA had no idea who Jimmy Iovine was at all.
But once we had found that letter from Soriano, the courier story became plausible. Our investigator, our own Mike Ehrmantraut, did some digging, I believe going so far as to knock on Iovine’s door. Long story short, we managed to confirm enough of the story to trace the leak back to his office at Interscope with certainty.
We packaged this up for the government, as (unofficially) part of a misdemeanor plea deal. The charge was equivalent to copying an album for a friend. The government did talk to the courier from what I heard, but didn’t charge him, for whatever reason. Maybe he talked his way out of it, maybe he didn’t talk at all. Either way, the plea deal would close the criminal matter for me.
But before we could finalize the plea deal, we had to get through a rough negotiation process over “damages.” RIAA was willing to drop any claim for restitution if I agreed to do a silly anti-piracy PSA for them. However, the government intended to push for 6 months in jail. It was surprising that the RIAA was being more reasonable than the government. However, the government, generally speaking, likes to assert their independence. As David put it at one point, the government will say they run their own cases. “The victim doesn’t tell [the goverment] what to do. This is also a way of not saying that if the victim loses interest, the government loses interest.” Perhaps that had something to do with the aggression from the government that remained once we had gotten the RIAA to back down.
We had a few options. We could agree to do the PSA to make the RIAA go away, and fight the government on the 6 months via written arguments, with the help of probation and other agents of the more reasonable variety. Or, we could have an evidentiary hearing on damages, a mini trial. More time consuming. We argue, the judge makes the call. Or, we could tell everyone to go fuck themselves, take it all the way to Candy Land, and go to trial.
We were pretty confident that we could win at trial. We would have sent subpoenas to everyone. To the band, to the RIAA, to Iovine and Axl and all of the players personally, to UMG, to Best Buy. It would have been a complete circus. The fight would have been over damages and business plans, all of which would have had to have been entered as evidence, not in a civil trial, but a criminal one. Neither UMG nor Best Buy would have wanted to put their contracts on public record, and they would have fought tooth and nail to suppress all the key evidence. There was a good chance the whole shit show would have gotten thrown out.
But I didn’t want to spend another fuck ton of money on a circus that would drain my soul for another year. Especially when there was just as much uncertainty as what we’d face after an evidentiary hearing. Rather than go double or nothing, I agreed to do “the stupid PSA” (quoting an email to David on 3/30/09), and we took our chances with a private evidentiary hearing. I’d have to cough up a few thousand bucks to kill some open warrants in Philadelphia, and we’d put together the best argument we could that incarceration was an inappropriate punishment.
Here are the highlights from our sentencing position (our evidentiary case), aside from all of the obvious details of the album’s many delays that started in 1999:
The label had entered an exclusive retail sales contract with Best Buy in which the retailer paid for 1.3 million copies of the album up front. As of February 6, 2009, the total US Sales of the album had only reached 537,000. But the label had been paid for these 1.3 million copies. From a financial standpoint, the album was arguably a platinum-level success for the label. And as I said, UMG cut this deal standing on the hype my actions generated.
Industry executives blamed the album’s poor sales on Rose himself for failing to promote the album through videos, tours and interviews. Other insiders attributed it to Best Buy, arguing that the retailer did little to promote its exclusive rights to sell the album. Rose pointed the finger at Interscope Records and Jimmy Iovine, for not putting enough support behind the album’s production and marketing. He told Billboard he didn’t believe that the album’s sales were harmed by my actions.
We also went into a detailed examination of the supposed infringement amount, a value that was impossible to define. Essentially, even if the government could establish the retail value of each track (which varied wildly between formats, due to general music industry nonsense), there was no reasonable way to determine the number of infringements. I made the tracks available for listening only. I didn’t enable anyone to download or rip the files and in fact, I took steps to prevent that. I couldn’t be held entirely responsible for any third parties who bypassed my systems. Although the number of visitors to Antiquiet could be tracked, the number of visitors does not equate to a number of downloads. There’s no way to know how many visitors actually played the tracks, or ripped the files. To claim that the number of infringements is equal to the number of visitors is purely speculation, blah blah blah, and “such supposition is not the proper basis for this Court to make a reasonable estimate of the infringement amount.”
At sentencing on July 14th, 2009, the AUSA meekly asked for 60 to 90 days of custody, but apparently we had made a good enough case, and the judge gave me a few months of house arrest and a year of probation. I would have been surprised to get time, but that possibility was still hanging over my head. I was relieved to have it finally gone.
House arrest was kind of a joke, considering I’m a bit of a shut-in. The case made it pretty easy to claim that music reporting was a legitimate enterprise I was engaged in for financial benefit, which meant that if I wanted to attend a concert, I could get a work release pretty quickly. I attended the “final” Nine Inch Nails show at The Wiltern with an electronic bracelet on my ankle, and a photo pass on my shirt. It wasn’t much of an inconvenience.
Probation meant I couldn’t travel out of the district without clearance, a situation I had been in since my arrest. This two-year time-out broke my habit of going back home to Philadelphia for the Fourth of July. And in fact I haven’t been back there since. Which is probably for the better.
On March 18, 2009, I received a loose pitch from the AUSA on what I would say in a PSA. Here’s the script they sent me, written by someone at the RIAA:
My name is Kevin Cogill.
As a life long fan of music, I have an understanding and appreciation for the artistry and vision that goes into the making of a great record. Musicians dedicate years of their lives refining their skills, and throw their blood, sweat, and tears into the creative process.
Unfortunately, their hard work and passion is undermined when their songs are distributed online without authorization, thereby threatening their ability to earn a living through the sale of their music.
So please: Respect the law; don’t misuse technology to distribute music online without the permission of both the artists and the labels that own the music. And respect the artists you love by purchasing your music from legitimate sources.
Reading this now, I agree with every word of it (though I laugh at the idea of me saying anything earnestly). Today, I think this is a good message. In fact, putting it here, in this context, not by court order, is surely far more effective towards the RIAA’s objectives than the forced PSA could have ever been. You’re welcome, RIAA! However, at the time, I bristled at this pitch, as I took it as an apology for a crime I didn’t commit. I did purchase my music from legitimate sources, I didn’t leak for the sake of leaking. I saw what I did was a journalistic act, not a trophy run or an act if theft.
I pushed for a PSA that only talked about sharing pre-release stuff, which didn’t go over well. A few emails were exchanged, all on that day, and then the PSA was never discussed again. A year later, Wired, who generally reported on the saga more responsibly than any other outlet, followed up with a story entitled “Guns N’ Roses Uploader Laughs Last,” which no one besides David and I enjoyed. There was some choice quotes of mine, and a link to a silly interview David and I did with Current TV.
Cara Duckworth at the RIAA told Wired that “due to various elements of this case (not to mention unnecessarily high production costs), [they] chose not to produce” the PSA. Wired raised an eyebrow at the parenthetical portion, noting that the RIAA had spent $64 million on witch hunts for a paltry $1.3 million return. We were talking about a radio spot I could have recorded in Garageband, and a TV spot that would have been me in jeans on a white background. Seemed like a drop in their bucket, but okay, Cara.
Even after I was done with probation, I remained nervous. In December 2010, I got word from David that the prosecutor and FBI were both “pissed” that I avoided jail, and that Antiquiet was being closely monitored. David had his Mike running counter-surveillance, following me to make sure no one else was. I was oblivious to a lot of it, but I lived in constant paranoia. David told me at one point that the government was looking for an excuse to “bring me back in.” For anything. I moved all my work to a computer I built myself, and researched the FBI’s encryption techniques to make sure my data couldn’t be compromised. To this day, all of my devices are heavily locked down. If Antiquiet gets so much as a cease & desist letter, lawyers are notified and shields go up like it’s the fucking Death Star. While no server is completely “hack-proof,” Antiquiet’s security infrastructure is far more sophisticated than any other content site’s that I know of, with multiple layers of protective hardware and software. I’m not daring Anonymous to expose whatever weaknesses I missed, please for the love of God, I’m just saying Antiquiet’s asshole is really fucking tight thanks to all of this.
There were a couple of close calls, actions that activated the vigilant authorities. At one point, Jensen Penalosa went to Johnny’s house, investigating a new leak that we hadn’t been aware of, yet seemed to be somehow involved with. It was scary, but we managed to fight it off.
And aside from constantly covering my ass from new headaches, I had the possibility of a civil suit hanging over my head. The criminal trial was over, but until the statute of limitations expired, there was nothing stopping the RIAA and/or Best Buy for suing me for damages. That is why for three years after the saga had ended, I kept my mouth shut about the source, and other details of the case. I needed to save all of that for a rainy day.
In writing all of this, I understand that there’s a good chance that I’ll invite at least a little bit of the wrong kind of attention. Hopefully enough time has passed, and my nose is clean enough to weather any little storm that could come about. I decided to do this while fielding a slow, but steady stream of interview requests from folks in the GNR fan community, that continue to this day. I had considered at least one. But if I’m going to stir this pot, I need to do so on my own terms, and I might as well get everything out there. My intent is to leave no questions unanswered, and to put this shit to bed forever.
It is widely assumed that I’m likely to have access to more leaks. I don’t. I’m not a hoarder, and I don’t care to have anything I can’t share. I know that there are about ten more Guns N’ Roses songs floating around among outsiders, but I forget the working titles that I had been given, and I forget the name of one guy I met that had them. I’m not just saying that; I really do forget these details. I didn’t care, because they did me no good. What I’ve heard left me somewhat impressed, as I recall, but I’ve heard no new songs more than once, and none all the way through. I can barely remember how they went. I do not have a photographic memory.
While I was still working at Universal in 2005, I met a guy that had been working with Axl, who told me that he had touched over 90 songs, 40 of which were “some of the best songs he’d ever heard.” 14 of the 90 would eventually become Chinese Democracy. But ten demos floating around don’t mean a whole lot to me. If Axl Rose chokes on a donut tomorrow and dies, there’ll be ten more Guns N’ Roses albums on the way. But you won’t find me getting impatient for the next one anytime this decade. So I’m not looking for any more GNR leaks. If you have any, I’m not interested, and I’ve got nothing to trade you. I think the GNR fan community is great, and that’s who this is for, but I’ve got nothing else to offer.
On March 11th, 2012, I saw Guns N’ Roses play the Wiltern. What I love about the Wiltern is that if you get there early enough, you can get a bracelet for a very shallow area right in front of the stage, which never gets uncomfortably packed, thanks to the venue’s security and stinginess. So for the entire show, I found myself front and center, my face no more than two feet from Axl Rose’s boots. There was plenty of casual eye contact, but he made no indication that he had any clue who I was. The band put on a great show. It was my first time seeing them with guitarist DJ Ashba, and that dude is no joke.
For a few years, I was the Chinese Democracy guy, but I’ve been happy to see that stigma fade. It comes up every once in awhile. Google invested in one of the companies I was involved with, and had to do a background check on me. They thought it was awesome. I’ve been working with some guys associated with the US government intelligence community on some new technology, and they all think it’s funny. I can display a legal savviness comparable to that of the worst international terrorist or cop killer, thanks to my experience with federal-level justice. That’s a fun parlor trick for a little white nerd like me.
But for the most part, Chinese Democracy is a distant speck in the rearview mirror. Digging up all of these files to lay this all out, for the record once and for all, has been an interesting way to spend a weekend. But I am going to enjoy finally forgetting all about this big box of paper that’s been in my garage for four and a half years.