On November 11, Los Angeles federal prosecutor Craig Missakian confirmed that 27 year-old Kevin "Skwerl" Cogill had agreed to plead guilty to criminal copyright infringement in connection with his unauthorized posting of nine as-yet unreleased tracks from a forthcoming album by the rock band Guns N' Roses. Cogill's blog at www.antiquiet.com posted the tracks in June, and reportedly removed them when Cogill received correspondence from the copyright owners shortly thereafter. Nonetheless, Cogill was arrested at his home and questioned by F.B.I. personnel before negotiating the plea, which could result in a maximum prison term of one year for misdemeanor copyright infringement. This is significantly less than the five-year maximum sentence he could have faced under the original felony charge.
 
The criminal provisions of the Copyright Act are not often discussed, but there can be little doubt that Cogill's conduct violates the express terms of section 506(a)(1)(c). That section provides that willful copyright infringement may be punished under 18 U.S.C. 2319 when the infringement is 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 of could have known that the work was intended for commercial distribution."  Section 506(a)(3)(A) then goes on to define "work being prepared for commercial distribution"  as "a computer program, a musical work, a motion picture or other audiovisul work, or a sound recording, if at the time of unauthorized distribution - (i) the copyright owner has a reasonable expectation of commercial distribution; and (ii) the copies or phonorecords of the work have not beencommercially distributed."

Thus the particular criminal copyright infringement provision at issue seems to have been carefully designed to apply to exactly the conduct in which Cogill was engaged, and would have been violated by any such distribution, even if the work had not been the highly-anticipated new album from a legendary multi-platinum rock band.
 
One other interesting (albeit tangential) point about section 506(a)(1)[c] is the way it equates distribution with "making available." The provision explicitly says that criminal liability can attach to the "distribution" of a work "by making it available on a computer network accessible to members of the public." The relationship between "distribution" and "making available" has been a hotly-debated question in the context of civil infringement actions brought by record labels against peer-to-peer users, with many courts holding that merely "making available" is not itself sufficient to give rise to a violation of the distribution right.  Section 506 clearly contemplates that it can be sufficient to give rise to criminal liability, however, provided there is the proper mens rea. Unless the term "distribution" is read to have a different -- and broader -- meaning in section 506 than it does elsewhere in the Act, it would seem that the courts are reading the term too narrowly in the context of civil infringement actions. If making available is enough to get Kevin Cogill a jail term, as Congress clearly states, why is not enough to impose civil liability on Jammie Thomas, a noted file-sharing defendant in Minnesota?