The Full Story Behind The RIAA & FBI's Insanely Wasteful Prosecution Of The Dude Who Streamed Guns 'N Roses Album

from the what-a-joke dept

Tue, Jan 7th 2014 10:10am — Mike Masnick

Back in the summer of 2008, we wrote about the bizarre move by the FBI to arrest Kevin Cogill, at gunpoint, for having posted a bunch of tracks from the as-yet-unreleased Guns 'N Roses album, Chinese Democracy. Of course, as pretty much everyone knew, GNR (actually, Axl Rose) had been working on that album for over a decade, pretty much refusing to ever release it. It was the vaporware of the music industry. As we noted at the time, pretty much every album eventually gets leaked, and it tends to get those albums more attention. In fact, many labels purposely leak albums. Cogill received the album via someone who emailed him the tracks, he put them up on his music website, Antiquiet, in a streaming-only format (so no downloading), and took them down about an hour later after the website got slammed with traffic.

And for that, you have a bunch of FBI agents show up at your door pointing guns at you? We couldn't understand why the FBI would be wasting taxpayer money on this at all. At best, it seemed like it should have been a civil matter for Universal Music to take up.

Either way, as we noted, the leak (and subsequent arrest) appeared to actually act as a huge marketing boost for the album's eventual release, and as the details of the criminal case against Cogill fell apart, prosecutors dropped the felony charges altogether, and eventually Cogill agreed to a plea deal, which was two months of house arrest and that he would do a public service announcement (PSA) for the RIAA. And then the RIAA never made him do the PSA, so instead he gave an interview talking about how people involved in file sharing can "get F'd in the A" by the RIAA.

It's been quite a few years since then... and Cogill -- statute of limitations now well behind him -- has decided to tell the full story of what happened. It's worth reading, as you learn about the typical insanity of the FBI completely overreacting, being led around by the nose by RIAA and Universal Music people who were simply misleading or lying about things -- yet another crazy story of massive overreaction by the industry to anything that seems like "piracy." In fact, as the report notes, the "leak" (which again, was about an hour's worth of streaming on a website) helped get lots of attention for the album, and Universal Music actually used the hype from the leak to sign a massive deal with Best Buy to presell 1.3 million albums. In other words, no harm done by the leak... at all.

You should read the full account, but I wanted to call out a few key sections. Cogill was officially charged under 17 USC 506(a)(1)(c), which is a special tidbit in the law that provides criminal penalties for leaking something that hasn't been released yet (that's how the FBI could pretend this was a serious criminal matter). But, Cogill and his lawyer had a rather useful response in their back pocket:

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.

Remember, at the time, this was the album that seemed to be perpetually postponed with no plans of release. Turns out, that kind of sunk the case -- but the FBI, as it's done way too often, simply took the word of the entertainment industry guys on things that turned out to be untrue (this is neither the first nor the last time that the RIAA has led the DOJ on a wild goose chase, which the DOJ only discovered way too late). In fact, Cogill notes that once things got going, the situation was basically the DOJ trying to figure out how to extricate themselves from the disaster they'd gotten themselves into by buying the bullshit story the RIAA gave them.

David [Kaloyanides, Cogill's lawyer] 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.

There are also a number of other bizarre asides, including wild goose chases from random other fans, including one who claimed to also have a copy of the album. Oh, and then there was this tidbit, which again undermined the case:

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.

And, as mentioned before, Universal's deal with Best Buy:

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.

Oops.

But there's also this: Cogill notes that he's never been in the "leaking" business, but rather a journalistic one. He covers the music industry and had written about how the album would leak, because all albums leak -- and because of that, someone sent him the leak. He posted about it from a journalistic standpoint, rather than because of any attempt to "leak" the album. And, from his account, for a while he didn't seem to realize just how insane the laws, law enforcement and our legal system are. Combine that with a clueless bunch of FBI agents easily pushed around by the RIAA, and you get this kind of insanity. The fact that Cogill had told the FBI repeatedly beforehand that if they wanted to arrest him to let him know and he'd show up... and they still showed up with guns drawn is just part of the insanity that happens when you have the kind of ridiculous claims from the RIAA, MPAA and the like about how these leaks are "destroying" their business... at the same time they're using them to their own advantage. Even the judge in the case couldn't understand what happened:

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.”

At some point, perhaps the folks at the DOJ are going to finally realize that when the MPAA and RIAA tell them crazy stories about "piracy" that they're exaggerated beyond belief. Until then, every time we hear about the stories where they screwed up royally -- such as with Cogill or Dajaz1 or Rojadirecta or Megaupload -- they just look completely clueless.

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Filed Under: chinese democracy, copyright, doj, fbi, guns n' roses, kevin cogill, pre-release
Companies: riaa

56 Comments

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Rekrul, 7 Jan 2014 @ 10:17am

At some point, perhaps the folks at the DOJ are going to finally realize that when the MPAA and RIAA tell them crazy stories about "piracy" that they're exaggerated beyond belief.

Never gonna happen...
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DannyB (profile), 7 Jan 2014 @ 10:22am

There's a reason they lie
There is a very good reason why the RIAA / MPAA lie about some individual costing them JILLIONS or even BAZILLIONS of dollars and threatening to wreck the global economy and end civilization as we know it!

If they came and said: "hey, this guy downloaded 21 songs and we lost over thirty dollars in sales!" the government would say, "take it to small claims court".

What's the poor RIAA / MPAA to do? Do you expect them to have to actually do something? Can't the world be adapted to service the RIAA/MPAA's business model?

Can't we just please turn the clock back a century? It wouldn't be as bad as the y2k fears. We could just change the "20" in 2014 to "19" as in 19-something. (Sorry, got confused there with hollywood math.)
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out_of_the_blue, 7 Jan 2014 @ 10:30am

This is NOTHING like Megaupload, Mike.
"such as with ... Megaupload" -- Still showing your true purpose by claiming that commercial scale contributory copyright infringement amounting to many PETABYTES of data over several years, millions of downloaders, and over a hundred million dollars gotten by that grifting is harmless as leaking one album. -- You have NO credibility with such egregious comparison. Your manifest goal is to do away with all copyright: you trot out these unique anomalies only to undermine its everyday good.
Mike's notions are all get-rich-quick schemes by using products someone else made. His continued defense of Megaupload shows his ideal "business model": neither pay to produce nor royalties on any of the files hosted so costs are just above bandwidth, and able to avoid legal liability so long as pretend ignorance of infringed content.

06:28:42[h-785-6]
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blaktron (profile), 7 Jan 2014 @ 10:33am

Isn't it a felony to entice a 3rd party to point a gun at someone with whom you have a civil disagreement? If they had hired private security to do this, the RIAA would be guilty of a number of serious crimes, but when they get the feds to do it its totally OK? You guys have a weird 'justice' system down there, yankee doodles!
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Private Frazer, 7 Jan 2014 @ 10:39am

Sounds like it was a marketing move by Universal?
1. Leak to journalist
2. Call cops
3. Get lots of press
4. Get some of your $12m back
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Anonymous Coward, 7 Jan 2014 @ 10:41am

The first like...four tracks of that album were really great if insanely overproduced. The rest? A resounding "meh".

I still believe the album would have never been released at all if not for Dr Pepper doing that publicity stunt (they said that if Chinese Democracy got released before the end of the year, they'd give everyone in America - except Slash - a free can of soda).
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Anonymous Coward, 7 Jan 2014 @ 10:56am

Spotted typo: "GNR (actually, Axl Rose)"

Should read: "GNR (actually, Axl Rose and a bunch of dudes who aren't Slash)"
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Anonymous Coward, 7 Jan 2014 @ 11:02am

Re: This is NOTHING like Megaupload, Mike.
"You have NO credibility with such egregious comparison."

Which is pots and kettles coming from the guy who continues to make posts that are so full of holes that a battleship could go through without touching the sides of the holes and also continues with the adhoms against Mike. You just couldn't make it up. Priceless.
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Derek (profile), 7 Jan 2014 @ 11:11am

False Witness
Aren't there rules about being a false witness or whatever it is called when you accuse someone of a crime that you know they didn't commit?
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Rikuo (profile), 7 Jan 2014 @ 11:16am

Re: This is NOTHING like Megaupload, Mike.
Here's a question for you OOTB.

Let's assume you are absolutely correct, that Mike is out to do away with all copyright, and we do mean ALL copyright (let's ignore his many statements to the contrary).

So what?

This would then mean that all of Mike's posts over the years support this goal. He would be calling for the repeal of what is quite frankly an out-dated law.

What is so wrong about wanting to do away with a law and arguing for such? Let's take abortion laws for example. Some people are for allowed abortions, other people are against it. However, you never hear people saying that you cannot argue for a side on the issue at all: at worst, you hear people from one side say to the people on the other that their position is wrong because of reasons XYZ. Not that arguing to repeal an anti-abortion law is wrong in and of itself.
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Anonymous Coward, 7 Jan 2014 @ 11:16am

The judge was suprised that they arrested me at gunpoint.

Does that mean the FBI were told he was a pirate, and assumed that meant a dangerous person armed with pistol and cutlass?
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Anonymous Coward, 7 Jan 2014 @ 11:17am

Well, on the bright side...
.. with the FBI no longer in law enforcement, cases like this are sure to happen less often, right?
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Anonymous Coward, 7 Jan 2014 @ 11:29am

Fortunately, the FBI isn't in the crime business anymore
Fortunately for future pirates, the FBI has switched to anti-terrorism mode and is no long interested in white collar crime.
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Rikuo (profile), 7 Jan 2014 @ 11:42am

Re: Fortunately, the FBI isn't in the crime business anymore
Great! So does this mean that the Battlestar Galactica Blu-rays I bought from Amazon UK, I can ignore the FBI warning whenever I get around to ripping them?

(yeah, I don't know either why a UK disc has an FBI warning on it)
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Anonymous Coward, 7 Jan 2014 @ 11:45am

Re: Fortunately, the FBI isn't in the crime business anymore
Piracy is terrorism, because the RIAA employs 2 billion Americans, so every time someone listens to music on the internet it costs the economy $60 trillion dollars.
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Anonymous Coward, 7 Jan 2014 @ 11:47am

Re: Fortunately, the FBI isn't in the crime business anymore
White collar crime will soon fall under the category of terrorism. haven't you seen the DHS and FBI warnings at the beginning of movies...? :)
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Anonymous Coward, 7 Jan 2014 @ 11:47am

Re: This is NOTHING like Megaupload, Mike.
But it IS a waste of taxpayer dollars and ANOTHER bullshit case sold to the FBI, isn't it?

And it IS an overblown raid for what amounts to a civil suit at best.

What exactly did Mike get wrong about the article?

Do you really condone FBI-style raids for all of us "pirate kiddies?" If you do, please stand up and say so - I'm sure it would give plenty of us a a good laugh.

___________________________________________________________
Putting in lines...just because...
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Anonymous Coward, 7 Jan 2014 @ 11:48am

i dont really think it's the FBI or the DoJ who are clueless, it's the heads of those two agencies or the congress person(s) who is/are bestest buddies with those heads! the thing that i would have found absolutely disgusting is how the feds and the industries had to get their pounds of flesh! they had to get a conviction, even if it was only on paper! it's more than about time those who are the instigators of this shit got their comeuppance! look at the insane press releases that the DoJ has put out over the Mega case and the way they have actually conducted their side of things. removing evidence and sharing it with an interested 3rd party, even though they went via a judge, which is no excuse (he wants reprimanding for that little act of biasness) is not the best way to get a court on it's side, surely, let alone a win!
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Watchit (profile), 7 Jan 2014 @ 12:10pm

Wasn't it just recently revealed that FBI's main concern is "national secuirty" over "law enforcement" now? Oh, wait, the FBI is in the record industries pocket, so they're an exception.
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Anonymous Coward, 7 Jan 2014 @ 12:19pm

That was a good read. Thanks to whomever found/submitted it.
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bob, 7 Jan 2014 @ 12:38pm

What if the NSA did it?
Okay, Mike. What if the NSA bugged Guns and Roses and used their wiretapping powers to extract the unreleased album? You would be squawking about privacy rights and stomping up and down. You would be right too because it was the creation of Guns and Roses and thus their decision about what happens to it.

Yet somehow if one of your beloved pirates does it, you're grabbing for every loophole and trying every argument to minimalize what they did. It is very much a criminal matter. It's an invasion of privacy and a terrible destruction of someone's right to control the product of their work.

Sheesh. At least be consistent.
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Techanon, 7 Jan 2014 @ 12:49pm

Re:
It's also a felony to lie to law enforcement, so either way they still committed a felony. But they get the high court treatment since they have wads of cash, a lobby group, a functional revolving door in the government and an army of lawyers...
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jupiterkansas (profile), 7 Jan 2014 @ 12:52pm

Re: What if the NSA did it?
Considering the album was a bomb, perhaps the FBI should have stopped the release in the name of counter-terrorism. Maybe they can stop the release of all of the MPAA's bombs too?
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Anonymous Coward, 7 Jan 2014 @ 12:55pm

Re: What if the NSA did it?
It's an invasion of privacy and a terrible destruction of someone's right to control the product of their work.

I'm amazed at how you can turn a(nother) botched FBI raid into an invasion of the RIAA's privacy.

Sheesh. At least have an argument that doesn't reek of bullshit on so many levels.
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Anonymous Coward, 7 Jan 2014 @ 12:57pm

Re: What if the NSA did it?
The guy didn't "bug" anyone - the FBI apparently felt SWAT-level tactics were necessary for a civil matter.

That kinda makes your bullshit NSA argument (loosely speaking, of course) fall apart, no?

Those poor, poor record companies...always having their privacy invaded. (that was sarcasm, in case you didn't get it)
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Agent Dude, 7 Jan 2014 @ 1:03pm

Ahhhh PC gun! FIRE
Ahhhh mouse trap! FIRE
Ahhhh Nick Nolte!! FIRE FIRE FIRE FIRE
Ahhhh My shoes! FIRE
Ahhhh FIRING TOO SOON. FIRE!
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John Fenderson (profile), 7 Jan 2014 @ 1:03pm

Re: Re:
It's not always a crime to lie to law enforcement -- it depends on the situation.
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John Fenderson (profile), 7 Jan 2014 @ 1:06pm

Re: What if the NSA did it?
You would be right too because it was the creation of Guns and Roses and thus their decision about what happens to it.

That's not why the NSA bugging GnR to extract their unreleased album would be reprehensible.

Perhaps what you're missing in your zeal to demonize is that the guy who got Johnny Law on him was not the guy who committed the actual crime.
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JMT (profile), 7 Jan 2014 @ 1:26pm

Re: This is NOTHING like Megaupload, Mike.
"You have NO credibility with such egregious comparison."

And you have no credibilty because your reading comprehension is so terrible. Mike was not comparing the scale of this case to the MegaUpload one, he was comparing the DoJ's similarly incompetent actions in each case.

Is English even your first language? Coz you really struggle with understanding it sometimes.
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Anonymous Coward, 7 Jan 2014 @ 1:30pm

Re: What if the NSA did it?
Okay, bob, what if you stick to reality?

Oops, impossible for you.
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bob, 7 Jan 2014 @ 1:31pm

Re: Re: What if the NSA did it?
At least I'm not a hypocrite, endorsing the pirate world's invasion of privacy while condemning it when the NSA does it.
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bob, 7 Jan 2014 @ 1:32pm

Re: Re: What if the NSA did it?
Work really hard on that retort? Or are you just one of those privacy rights deniers who thinks that everything pirates do is right?
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bob, 7 Jan 2014 @ 1:33pm

Re: Re: What if the NSA did it?
So how did the guy get the copy? Someone circulated private files. It's just like what NSA's TAO does. Heck, maybe the pirate was even an NSA agent. Now wouldn't that explode Mike's brain.
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bob, 7 Jan 2014 @ 1:34pm

Re: Re: What if the NSA did it?
Why don't you explain why it's great for a pirate to invade the privacy of Guns and Roses but it's bad for NSA to do it.
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Zonker, 7 Jan 2014 @ 1:40pm

Re: Fortunately, the FBI isn't in the crime business anymore
But piracy is terrorism. Why else do you think they send Navy escorts to the coast of Somalia? To protect against men with guns raiding and holding transport crew and cargo hostage.
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Anonymous Coward, 7 Jan 2014 @ 1:44pm

Re: Re: Fortunately, the FBI isn't in the crime business anymore
I don't know either why a UK disc has an FBI warning on it)

Because the RIAA and MPAA want to encourage everybody to believe that the USA rules the world. That way they only have to buy one set of politicians.
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Anonymous Coward, 7 Jan 2014 @ 1:52pm

Re: Re: Re: What if the NSA did it?
Pirate world's invasion of privacy?

If you're making a work available for a fee or for free, where exactly is the expectation of PRIVACY?

I anxiously await your continued hole-digging.
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Anonymous Coward, 7 Jan 2014 @ 1:54pm

Re: Re: Re: What if the NSA did it?
If the only people who had it before it was made available for streaming was the record industry, then it would appear that it came from THEM, wouldn't it?

The "someone" in your case, is likely a member of the RIAA.
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Anonymous Coward, 7 Jan 2014 @ 1:59pm

Re: Re: Re: What if the NSA did it?
Because Guns N Roses is not a population of several billion people.

Did you really come here needing this explained to you?
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bob, 7 Jan 2014 @ 2:02pm

Re: Re: Re: Re: What if the NSA did it?
Dude. Don'tcha read? The record album wasn't even released yet. To save you the trouble of reading the entire thing, I'll quote:

"GNR (actually, Axl Rose) had been working on that album for over a decade, pretty much refusing to ever release it. "

It was a terrible invasion of privacy, the kind that Mike decries when the NSA does it.
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jupiterkansas (profile), 7 Jan 2014 @ 2:07pm

Re: Re: Re: Re: Re: What if the NSA did it?
Except the guy hauled into court was not the guy that pirated the album. It was given to him by someone else - probably the musician or someone working for the label.
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John Fenderson (profile), 7 Jan 2014 @ 2:09pm

Re: Re: Re: What if the NSA did it?
I don't think it's great that someone stole the album. That you consistently lie about what people think to make your point only detracts from your credibility.

I do think, however, that calling it a "privacy invasion" is a pretty huge stretch. The NSA tracks us all, all the time. Someone pirating an unreleased album isn't even on the same planet as that.
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Internet Zen Master (profile), 7 Jan 2014 @ 4:16pm

So in other words, the RIAA was trying to recoup the losses for letting a hasbeen waste a decade on what was the music industry equivalent of Duke Nukem Forever?

Duke at least had the excuse that his game was dragged through development hell, among other things. What's Axl's excuse for Chinese Democracy being absolute shit?
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Anonymous Coward, 7 Jan 2014 @ 4:44pm

Re: Re: Re:
Your ship sailed long ago when you decided to cheer on the crusade against grandmothers without computers.

No one believes you, Prenda fanboy, because when your type decided to sue children and senior citizens for chump change because you couldn't afford your twenty-seventh mansion, you lost all possible credibility.
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Anonymous, 7 Jan 2014 @ 5:14pm

Re: Re: Re: Fortunately, the FBI isn't in the crime business anymore
Because America f*** yeah!!!!
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Rich, 7 Jan 2014 @ 6:11pm

Re: Re: Re: What if the NSA did it?
Great, Bob the wacko is back.
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Anonymous Coward, 7 Jan 2014 @ 6:35pm

Re: Re: Re: What if the NSA did it?
This coming from a corporate shill.

Still being payed by the word and not by the syllable I see.
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That One Guy (profile), 7 Jan 2014 @ 6:38pm

Re: Re: Re: Re: What if the NSA did it?
It's not 'Bob the wacko', its 'Paywall Bob', remember?
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Anonymous Coward, 7 Jan 2014 @ 9:02pm

DOJ takes bribes from the MAFIAA. That's why they let the MAFIAA pull their strings and dance like a puppet.
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Ninja (profile), 8 Jan 2014 @ 2:56am

At some point, perhaps the folks at the DOJ are going to finally realize that when the MPAA and RIAA tell them crazy stories about "piracy" that they're exaggerated beyond belief.

MAFIAA: I swear! That filthy pirate had a wooden leg and a hook where should be his right hand! He shamelessly siphoned the music through a series of tubes and left us with nothing! True story!

This could be funnier if it was on texas and the MAFIAA swore the pirate had a ship that sailed in barren lands instead of the sea. You know, add credibility to the FBI.
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Anonymous Coward, 8 Jan 2014 @ 3:57am

Re: Re: Re: Re: Re: What if the NSA did it?
Bob you need to go back to school and work on your reading/comprehension.

This guy did not steal the album from that idiot known as Axel Rose. It was given to him.
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Clownius, 8 Jan 2014 @ 4:17am

Re: Re: Re: Re: Re: What if the NSA did it?
I though it might be ootb's new name
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Bergman (profile), 8 Jan 2014 @ 4:57am

Lying to a federal agent is illegal, right?
> In fact, Cogill notes that once things got going, the
> situation was basically the DOJ trying to figure out how
> to extricate themselves from the disaster they'd gotten
> themselves into by buying the bullshit story the RIAA
> gave them.

Last time I checked, telling a federal agent something untrue out of sheer faulty memory is a serious crime.

So how is it that what is a conspiracy in all but name for tens or even hundreds of people to lie to dozens of federal agents doesn't result in even a single criminal charge?
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That One Guy (profile), 8 Jan 2014 @ 5:11am

Re: Lying to a federal agent is illegal, right?
1) Going after the ones who sold them the BS story, and brought about the whole mess, would be admitting that they were fooled in the first place. Since such brilliant individuals could never be tricked like that, that means that they weren't tricked/lied to, and therefor there's no one to go after. /s

2) It would probably be rather awkward later on, when the higher placed DoJ person/people who ordered and signed off on the raid, 'retired' into the nice job the *AA's had left open for him for being 'such a good sport' about 'humoring their requests', had he tried to have them criminally prosecuted.
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Pragmatic, 8 Jan 2014 @ 6:14am

Re: Re: This is NOTHING like Megaupload, Mike.
It's a symptom of cognitive dissonance, JMT. Cathy sees what she wants to see and she sees a Mike who represents her worst, most warped idea of what she claims to be against.

I'm not sure what she actually believes, beyond trying to convince us all that she's anti-corporate and anti-rich on principle, and she fails at that.
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Anonymous Coward, 11 Jan 2014 @ 6:29pm

Re: Re: Re: Re: Re: What if the NSA did it?
Beyond what others have pointed out to you, I'd actually point out where it was revealed to have been available on bootleg vinyl well before he released the album that was given to him.
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