How Music Got Free (26 page)

But all of this evidence was circumstantial. There were hundreds of people who might fit this description. The Granada Hills raid in 2007 had ended with both Cassim and his mother in handcuffs, but the evidence obtained from the search warrant was not overwhelming. The only computer the Feds had found was a laptop, with nothing incriminating on it. They had found a bong, too, and marijuana, but nothing that would make a charge stick. In his audience with Vu, Cassim had said little, and, alone among those hit in the RNS raids, he did not admit to being a participant in the group.

Glover suspected that Cassim had dumped the evidence in the wake of their final phone call. But if so, it seemed he had not managed to do so completely. On a burned compact disc from his bedroom, the FBI found a copy of Cassim’s résumé, and there, in the “Properties” tab, Microsoft Word had automatically included the name of the document’s author: “Kali.” Plus, his subscriber records showed he had
called Dell Glover hundreds of times, and, sure enough, his mobile phone contained Glover’s cell number.
The contact’s name was listed only as “D.”

Cassim maintained his innocence. While he provided no explanation for the phone calls to Glover, his lawyer would later contest that the CD alone was not enough to tie the ethereal screen name “Kali” to the actual human being Adil Cassim. And although Glover’s FTP logs showed that someone at his mother’s IP address had been uploading pirated material, that didn’t mean Cassim was responsible. It could have been anyone. After all, when the Feds took his wireless router, it wasn’t even password protected. Cassim was using the “unsecured wireless” defense—the same one Glover had talked about on the phone with Kali.

Matthew Chow was fighting the case too. Even the Feds conceded that his involvement in RNS was minimal. He hadn’t been an active participant in the group for years, and the CDs he had ripped had been purchased legally from stores. Chow’s main contribution to RNS had been his design of the ASCII marijuana leaf on the group’s old NFOs—not exactly evidence of active participation in a criminal conspiracy to defraud. But the case against him was strong. In his first interview with the FBI, he had signed an affidavit confessing that he was a member of the group.

The two would be tried together. Cassim was represented by Domingo Rivera, a self-described “Internet Lawyer” who specialized in defending hackers. For an attorney, Rivera had an unusual amount of technical expertise: he had served in the U.S. Navy as a computer engineer and later worked as a cybersecurity expert for the Department of Homeland Security. He had used the unsecured wireless defense several times before, and had an impressive track record of acquittals.

Chow had his own lawyers, a pair of Houston locals by the names of George Murphy and Terry Yates. In the Texas criminal defense scene, Murphy and Yates were local legends, revered as much for
their charisma as their unorthodox legal approach. Yates in particular was great with juries, a lifelong Houstonian with a thousand-lumen smile and a pleasant Texas drawl. Immediately, Yates and Murphy focused on changing the case’s jurisdiction from Virginia. They weren’t impressed by the FBI’s assertion that a single microsecond electronic impulse was enough to establish jurisdiction. A federal judge agreed, and the case was moved to Houston. Although the two did not know how to program computers, and this was their first intellectual property case, they were now playing on home turf.

During jury selection, the prosecution struck down any jurors who had ever downloaded music online, even legally. Rivera, Murphy, and Yates did the same, and everyone under the age of 40 was recused from the jury pool. The most important music piracy case in the history of American criminal justice would be decided by a rarefied group of middle-aged Texans still stranded in the compact disc era.

The trial began on March 15, 2010, at a federal courthouse in Houston. When Glover was called to testify
he performed poorly. Although he believed Kali and Cassim to be the same person, when cross-examined by Rivera he was forced to admit that he had no concrete evidence to show this was true. If Cassim were to talk in court, Glover could maybe identify his voice. But Cassim didn’t have to talk; the Fifth Amendment guaranteed his protection against self-incrimination, and Rivera could invoke it on his behalf. Amazingly,
the FBI did not present recordings of Cassim’s voice as evidence, and, in five days of trial, Cassim never said a word.

Saunders went next. He performed poorly as well—he knew even less than Glover. He couldn’t tie Kali to Cassim, and they had never even talked on the phone. During testimony, Rivera presented the “unsecured wireless” argument, which Saunders found preposterous. The two got into a heated geek-off about how IP addresses were assigned, until the judge told them to cool it.

After this inauspicious beginning, Glover was unsettled. He was still sure that Kali and Cassim were the same person, but now he was
beginning to wonder if a jury could be convinced. Could Cassim actually beat this thing? If so, could Glover have beaten the case too? He began to have second thoughts about his own irrevocable decision to plead guilty, and his decision to testify.

The trial continued for four more days. DOJ trial attorney Tyler Newby, one of Jay Prabhu’s deputies, called a dozen more witnesses, including Peter Vu. He entered many pages of server logs into evidence. He presented a paper trail of leaked compact discs. He presented the phone records showing that Glover had called Cassim’s cell phone hundreds of times, the same cell phone Cassim had had on him when he was arrested. Rivera repeatedly disputed this evidence, but for some things—like why Adil Cassim had for several years felt the need to carry on a long-distance relationship with a CD packaging plant employee—he didn’t seem to have good answers.

The trial concluded on March 19. After five hours of deliberation, the jury returned a verdict. Cassim was not guilty. Out of the hundreds of cases brought in Operation Fastlink, it was the first nonconviction. Glover couldn’t believe it. He was going to jail and Cassim was going free, based on an argument over wireless routers. Glover became angry—not with Cassim, but with himself. He never should have signed the deal. He never should have talked to the Feds. He should have gotten a better lawyer. He should have taken the risk. The “unsecured wireless” defense had worked.

Or had it? After all, it wasn’t just Cassim on trial. Matthew Chow had been found innocent as well, even after admitting to being a member of the group. And if Chow wasn’t guilty, the jury must have had something besides router security on their minds. Even as Rivera and Saunders were arguing the finer points of IP address assignment, Yates and Murphy had tried a different approach. Not wanting to bore the jury with technobabble, they instead had focused on the legal definition of the word “conspiracy.” Typically, a conspiracy benefited the conspirators in some obvious way, but in Chow’s case that didn’t seem to have been true. There was no evidence to show that Chow
had ever made any money off his participation in RNS. In fact, it seemed he was losing money, spending a portion of his paycheck buying CDs in exchange for—what, exactly? Pirated movies that were in most cases already freely available elsewhere? Yates explained to the jury that Chow wasn’t engaged in a conspiracy. He was just hanging out online with friends.

This argument proved effective. In conversations after the trial, several jurors had said that, while they understood the defendants were probably guilty, they didn’t agree with the severity of the potential punishment, so they had instead decided on acquittals. The legal term for this was “nullification.” It referred to an unusual feature of the American legal system, one that prosecutors and judges tried to keep quiet. Nullification was the prerogative of juries, while accepting a preponderance of evidence, to override laws they saw as unjust. This was the real reason for Chow’s not guilty verdict, and probably Cassim’s too.

For more than a decade Rabid Neurosis had burrowed its way into the music industry’s supply chain. They had scoured eBay for early CDs; they had bribed radio DJs and record store employees; they had sourced moles inside warehouses, and television stations, and music studios; they had even made their way into the factories themselves. They had leaked 3,000 albums a year across every genre. Across the globe they had built a network of infiltration and dissemination. In the shadows of the Internet they had stashed their secret troves of pirated material and kept them locked under uncrackable encryption. A team of expert FBI agents and a small army of private detectives had tried, and failed, to work their way into the group for more than five years. The economic damage they had caused to the recording industry was measurable and real, and ran to millions and millions of dollars.

But on March 19, 2010, a Texas jury, specifically selected for its technological unsophistication, found that the laws that prohibited these activities did not have to be obeyed.

S
ix months after the trial of Adil Cassim concluded, I met Karlheinz Brandenburg in person for the first time. By this time he was 53 years old and his graying beard gave him a distinguished, wizardly affectation. He had continued his work as the director of Fraunhofer’s Institute for Digital Media Technology in Ilmenau, and was an avuncular presence there. His students spoke of him with affection, but he had no children—the mp3 was his legacy.

Now, with the rise of Internet streaming services like Spotify, its retirement was looming. Dieter Seitzer, Brandenburg’s thesis adviser, had anticipated this switch over 30 years before, and his original vision for the mp3 was for streaming media, not storing it. But Spotify didn’t use the mp3 format. It used Ogg, the open-source alternative. Brandenburg and Grill had long suspected Ogg of infringing on their patents, but those patents were more than 20 years old and beginning to expire. The technology was free now. It was the music that cost money.

Still, he could hardly complain, as he was wealthy and successful by any standard. The fruits of his insights could be found anywhere electronics were sold, tracing all the way back to the ancient, five-song MPMan player that Saehan International had commissioned all those years before. In fact, Brandenburg still owned one of those. The thing didn’t work anymore, of course—the battery had crapped out, and no modern computer supported the 20-pin connector by which it transferred files. But for some reason Brandenburg, who was “not sentimental” about technology, had held on to it.

Doug Morris, too, was a lucky man. He’d won the coin toss with Jay-Z, and saved Universal a million bucks. But then
The Blueprint 3
had launched a late-career renaissance, far outselling expectations, and by the end of 2010 it was Shawn Carter who’d come out ahead. That same year the music industry bottomed out at less than half its 2000 size. Vivendi finally decided to enforce its retirement clause, and at the beginning of 2011, Morris was replaced as CEO of Universal Music Group, and moved to an advisory position with limited responsibility.

After twenty years at Warner, Seagram, and Vivendi, Morris had earned more than 200 million dollars. Even in his last year, straddling the smoking wreckage of the music industry, he’d cleared more than ten million bucks. Was he overpaid? Perhaps—corporate reports showed that Lucian Grainge, the successor CEO at Universal whom Morris had personally groomed, earned only half of that. Then again, perhaps not. His services remained in high demand, and, in an echo of his Time Warner firing in 1995, a restless Morris was hired away by a rival firm almost immediately, this time as chairman and CEO of Sony Music Entertainment. Morris—a 72-year-old self-confessed technology ignoramus—would shepherd that company’s artists and repertoire into the next millennium. Later that year, the British music conglomerate EMI was acquired by Universal, making the Big Four the Big Three and leaving 80 percent of the recording industry in the hands of just Universal Music Group, Warner Music Group, and Sony Music Entertainment. At one time or another, Doug Morris had run them all.

As artists and labels sought new directions for revenue, the importance of viral videos, publishing rights, streaming services, and the festival touring circuit continued to grow. In 2011, for the first time since the invention of the phonograph, Americans spent more money on live music than recorded. In 2012, North American sales of digital music surpassed sales of the compact disc. In 2013, revenues from
subscription and advertiser-supported streaming passed $1 billion for the first time.

The creative industries scrambled to cut licensing deals for streaming media. Apple bought Beats, paying Dr. Dre and Jimmy Iovine more than half a billion dollars each. Google Play debuted. Spotify, Rhapsody, Deezer, Rdio, and Pandora all saw double-digit growth. Bidding wars erupted over the rights to stream the back catalogs of Led Zeppelin and the Beatles. Leading the way was Vevo, hitting five billion views a month and still growing by 50 percent a year. Morris now understood that this, above all, was the thing he’d be remembered for.

But streaming didn’t solve everything. It may not have solved
anything
. The music streaming platforms were perpetual money-losers, spending unsustainable amounts to license content to attract early users. Despite this spending, artists with millions of plays earned royalty checks only in the hundreds of dollars. In 2013, amid an upbeat economic picture, the recording industry’s total revenues once again declined, to their lowest level in three decades. Consumer research showed that new Spotify subscribers stopped pirating more or less completely. They also stopped buying albums. The labels were now engaged in a difficult two-front war, with the streaming services on one side and the pirates on the other.

Artists began to experiment. Lady Gaga moved a million units in a single week by selling her album
Born This Way
for 99 cents. Beyoncé released a surprise self-titled “visual” album with 17 attached videos, exclusively sold through Apple. Radiohead’s Thom Yorke pulled his work from Spotify and dumped his album
Tomorrow’s Modern Boxes
onto BitTorrent. Taylor Swift pulled her work too, then sold nearly two million copies of her album
1989
in a month, the bulk of those as compact discs at big-box stores.

Retail still meant leaks, but the industry was taking better precautions. Kanye West had been a favorite target for RNS for years. In
2011, he struck back. An article in
Billboard
detailed the “
near-military-scale planning” he took to keep his collaborative album
Watch the Throne
in-house, storing the masters on hard drives locked in waterproof “Pelican” cases that never left the sight of his studio engineers. Opening the cases required biometric identification scans, and the finished masters were shipped to the production plants under careful oversight. The pirates didn’t get it until the Tuesday it was released.

Of course, the easiest way to prevent leaks would have been to get rid of the CD entirely. But even in 2013, after 17 years of psychoacoustic chaos, the industry could not afford to do so—more than a third of the U.S. music industry’s revenues still came from physical album sales, and more than half globally. The last major manufacturing facility for compact discs in the United States was in Terre Haute, Indiana, and the industry still relied on it. Once the discs were shipped to stores, the supply chain was too diffuse to control, and new Scene groups like CMS, MOD, and CR established themselves as contenders for RNS’ vacated crown. But none got close to the dominance that group had achieved, and the music Scene began to decline.

Adil Cassim got a new job as an IT administrator and moved out of his mother’s house. Fearing a civil suit from the RIAA, he refused to speak to the press. Through his lawyer, Domingo Rivera, he continued to maintain that he had no connection to the Internet presence known as “Kali.” Matthew Chow, his codefendant, also refused to speak to the press, and deleted his Facebook profile.
Patrick Saunders, the informant, avoided jail time, served probation, and eventually got a job as a paralegal.
Simon Tai, RNS’ old ripping coordinator, was never charged with a crime. Tony Dockery served a brief prison sentence, then got a job working the graveyard shift at Shelby’s Super 8 Motel. Bruce Huckfeldt and Jacob Stahler, the APC pirates from Iowa, served probation, then took up powerlifting.

Alan Ellis remained reclusive. After the Oink trial, he never gave another interview, and all trace of him on the Internet was gone. I was
unable to discover his current employment status or his precise whereabouts. In the end, after months of effort, I received from him a single email regarding his time at Oink: “It’s a part of my life which I’m happy is now behind me.”

And then there was Dell Glover. In March 2010, he reported to a federal minimum-security prison and began a three-month term. Club Fed proved bearable—more boring than hellish—and he was released in June. He was legally barred from contact with his fellow conspirators, and his friendship with Dockery came to an end. Still on probation, he worried about his ability to find work. But Glover was a grinder, and soon enough he had a job, installing the front-plate grilles at the Freightliner truck factory in Cleveland, North Carolina.

We met for the first time in 2012. Returning from prison, he, too, had developed an interest in weight lifting, and hit the gym with characteristic discipline, adding twenty pounds of solid muscle to his frame. But as his body grew intimidating and bulky, I could see from photographs that his face had actually relaxed, and when he reflected on his life the familiar grimace would fade into an expression of fatherly tenderness. I don’t think he’d ever really considered the risks he was running as a bootlegger. He’d just wanted something and had impulsively gone after it. Nevertheless, his encounter with America’s criminal justice system had marked him, and sometimes, when he was telling me the juicier bits of his story, he would go to the window and pull aside the curtain to scan the block, as if the Feds might still be out there, waiting for him to slip up again.

By the end of the year he’d begun to wonder if there wasn’t an easier way to make money than working 16-hour shifts on a production line. Capital had gone global, and bounced from New York to Montreal to Paris to Japan. Labor stayed local, stuck in Shelby, North Carolina. That geographic disconnect was a key driver of inequality, and Glover was beginning to see it. He enrolled in night school and began pursuing a bachelor’s degree in computer science. He worked
fewer hours, and his life became more stable. He regularly attended services at Friday Memorial Baptist. He sold the Navigator—rims and all—to a buyer he found on Craigslist.

Inevitably, though, the sidelines remained. Glover, now 40 years old, continued his work as a self-described “tinkerer.” For small cash payments, he did low-level computer maintenance and repair. He installed software on friends’ computers. He set up wireless routers for the elderly, careful always to protect their networks with passwords. He formatted hard drives and reinstalled frozen operating systems. For twenty bucks, he would jailbreak your iPhone.

The sideline extended to optical disc technology. Xboxes, PlayStations, Wiis, Blu-ray—if your device wasn’t working, you took it to Glover, who would fix it for a small cash fee. Most of the time, somebody had inserted a second disc on top of a first, or maybe the laser had burnt out. The fixes were simple and required no more than a screwdriver and a single replacement part. Meaning, if you had a busted CD player, Dell Glover could fix that for you too.

As technology evolved, such physical relics were left behind. I could relate to Glover’s fondness for obsolete tech—looking to hold on to my music collection, I’d saved every hard drive from every computer I’d ever had. There were nine of them, dating back to 1997, each one double the capacity of the last. The earliest, with just two gigabytes of storage, contained the first few songs I’d ever pirated. Now, across all the drives, I had more than 100,000 mp3s.

It had taken me 17 years to amass all these files, but the rise of cloud computing made the whole thing pointless. My hoarding instincts were fading, curating the library was growing more tiresome by the year, and the older drives didn’t even work with modern systems. Finally I caved, bought a Spotify subscription, and accepted the reality: what I’d thought of as my personal archive was just an agglomeration of slowly demagnetizing junk.

How to dispose of it? I googled “data destruction services” and
soon found myself in a warehouse in Queens, carrying the drives in a
plastic bag. I was prepared to pay for the service, but the technician told me that, for such a small job, he’d be willing to do it for free. He led me around back, through a massive warehouse shared by a variety of industrial firms, to a small chain-link partition that belonged to his company. Once we arrived, I watched as he donned a pair of safety goggles, then picked up a large pneumatic nail gun. He took a drive from the bag, placed it on a workbench, and systematically blasted a half dozen nails through its metal housing. Then he picked it up and shook it next to his ear, to listen for the telltale rattle of its shattered magnetic core. One by one he repeated this process, until the bag was empty. When he had finished, he gathered the ruined drives in his arms, then threw them in a nearby dumpster, on top of thousands of
others.