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Melanie Kim on the Mouse that roared
March 5, 2003: Even after 1 million songs in 24 hours, the Grey Tuesday
protest keeps getting bigger. There's been press coverage in the New York Times,
NME, the Guardian, the Christian Science Monitor, and this weekend there's going
to be two pieces running on MTV.
Keep up with what's going on at Downhill Battle by subscribing
and getting involved with their continuing campaign.
See also: DOES EMI REALLY CONTROL THE COPYRIGHT TO THE WHITE ALBUM?
February 25, 2004: Downhill Battle offers this follow up on the huge success of Grey Tuesday. Over 400 sites participated including 170 that hosted the album.
Jonathan Zittrain, [NYT: Defiant Downloads Rise From Underground] has the following to say about the legal implications of Grey Tuesday: "As a matter of pure legal doctrine, the Grey Tuesday protest is breaking the law, end of story" "under copyright law a judge can impose damages as high as $150,000 for each infringement" "So if Mr. Burton had been able to get permission to make The Grey Album from both the Beatles and Jay-Z, he would probably have had to give away more than 100 percent of his publishing rights."
February 24, 2004: Andy Baio of Waxy reports that a wave of C&D's have already started arriving in the inboxes of the Grey Tuesday participants:
The law firm of Cowan, Liebowitz & Latman
[representing Capitol Records] has started e-mailing cease-and-desist notices [see below] to the websites that are participating in the Grey Tuesday protest tomorrow, whether they're hosting the album or simply changing the colors of their homepage. The cease-and-desist demands that website owners [1)] "cease any plans or efforts to distribute or publicly perform this unlawful recording," [2)] "identify the names and addresses of any third parties who have supplied you with physical or digital copies of The Grey Album," and [3)] "provide Capitol with an accounting of all units of The Grey Album that have been distributed via your website."
The most disturbing part of the letter, sent to people who merely stated their intent to participate is this: "In addition, to the extent that you have already commenced distribution of The Grey Album, you must make payment to Capitol in an amount to be discussed. We demand that you contact us immediately."
Does this sort of preemptive cease-and-desists set a new precedent for record label action? Do website owners have to obey their demands, when they haven't even posted the album yet?
Here is a copy of the c & d from Rantings and Ravings 2.0
Cowan, Liebowitz & Latman, P.C.LAW OFFICES
1133 Avenue of the Americas | New York, NY 10036-6799 | Telephone (212) 790-9200 | Web www.cll.com | Fax (212) 575-0671
Re: The Grey Album and Misappropriation of Capitol Records, Inc.'s Sound Recordings
To Whom It May Concern:
We are counsel to Capitol Records, Inc. ("Capitol"), the exclusive U.S. licensee and/or owner and distributor of musical sound recordings featuring performances by The Beatles. We write concerning your announced intention of distributing an unlawful and unauthorized sound recording known as The Grey Album on February 24, 2004. This infringing album contains extensive samples from recorded performances by the Beatles, including "Long, Long, Long," "While My Guitar Gently Weeps," "Glass Onion," "Savoy Truffle," "Mother Nature's Son," "Helter Skelter," "Julia," "Happiness is Warm Gun," "Piggies," "Dear Prudence," "Rocky Raccoon," "Revolution 1," "Revolution 9," "I'm So Tired," and "Cry Baby Cry" (the "Capitol Recordings"). Distribution of The Grey Album constitutes a serious violation of Capitol's rights in the Capitol Recordings â€“ as well as the valuable intellectual property rights of other artists, music publishers, and/or record companies â€“ and will subject you to serious legal remedies for willful violation of the laws. We accordingly demand that you cease any plans or efforts to distribute or publicly perform this unlawful recording.
As you are no doubt aware, The Grey Album is an amalgamation created by an individual named Brian Burton (a/k/a Danger Mouse) of Jay-Z's The Black Album and the Beatles' self-titled 1968 album commonly known as The White Album. There is no dispute that The Grey Album incorporates Capitol Recordings, as Mr. Burton acknowledges on his website (http://www.djdangermouse.com) that "every kick, snare, and chord is taken from the Beatles White Album and is in their original recording somwhere [sic]." There is also no dispute that Mr. Burton never requested permission from any of the rights-holders to create The Grey Album.
Capitol has demanded that Mr. Burton cease distribution of The Grey Album, and Mr. Burton has indicated publicly that he intends to comply with Capitol's demands. As reported by Reuters on February 17, 2004:
Danger Mouse said he created the record strictly as a limited-edition promotional item, with only a few thousand copies pressed . . . . The artist, whose real name is Brian Burton, has agreed to comply with the order and will no longer distribute copies. "He just wanted people to hear the record," says a spokesman in the U.K.Reuters has also quoted Mr. Burton as saying, "[t]his wasn't supposed to happen . . . . I just sent out a few tracks (and) now online stores are selling it and people are downloading it all over the place." By further distributing The Grey Album, you will not only be violating the rights of those who own the recordings and compositions at issue. You will also be interfering with the intention of the very artist whose rights you purport to vindicate.
We are aware of the so-called "Grey Tuesday" event, sponsored by http://www.downhillbattle.org and described on the http://www.greytuesday.org website as a "day of coordinated civil disobedience" in which participating sites will make the unlawful Grey Album available for downloading, distribution, and file-sharing in order to force "reforms to copyright law that can make sampling legal." Your site is listed among those that will engage in this openly unlawful conduct. Any unauthorized distribution, reproduction, public performance, and/or other exploitation of The Grey Album will constitute, among other things, common law copyright infringement/misappropriation, unfair competition, and unjust enrichment rendering you and anyone engaged with you in such acts liable for all of the remedies provided by relevant laws. These remedies include but are not limited to preliminary and permanent injunctive relief as well as monetary and punitive damages necessary to remedy your openly willful violation of Capitol's rights.
In addition, to the extent that you have already commenced distribution of The Grey Album, you must make payment to Capitol in an amount to be discussed. We demand that you contact us immediately.
Unless we receive full and immediate compliance with these demands, Capitol will be forced to consider pursuing any and all available remedies at law and in equity.
Nothing herein shall be deemed an admission or waiver of any rights or remedies of Capitol and/or its affiliates, all of which are hereby expressly reserved.
/s/ J. Christopher Jensen
J. Christopher Jensen
- cease and desist from the actual or intended distribution, reproduction, public performance or other exploitation of The Grey Album and any other unauthorized uses of the Capitol Recordings or any other sound recordings owned and/or controlled by Capitol;
- identify the names and addresses of any third parties who have supplied you with physical or digital copies of The Grey Album or who are otherwise involved in The Grey Album's unauthorized distribution, reproduction, public performance, or other exploitation;
- provide Capitol with an accounting of all units of The Grey Album that have been distributed via your website, either physically or digitally, and of all instances of public performance of The Grey Album rendered via your website; and
- preserve any and all documents and records relating to this matter, including but not limited to electronic data and other information which may be relevant/discoverable in the event of litigation.
This will be an interesting one for the courts if the case precedes in state court on common law copyright infringement grounds (since The White Album is a pre-1972 work). EFF asks if EMI has a case
Here is Downhill Battle's response to EMI:
Mr. Jensen and EMI:
We have received your February 23 email concerning our plans to make the Grey Album available on our website.
Despite your letter, Downhill Battle will be posting the Grey Album on our website tomorrow. Your efforts to suppress this music stifle creativity and harm the public interest; we will not be intimidated into backing down. Downhill Battle has a fair-use right to post this music under current copyright law and the public has a fair-use right to hear it. Opposing EMI's censorship campaign is precisely the purpose of Tuesday's protest and we won't waiver from that goal.
The current legal environment allows the five major record labels to dictate to musicians what kind of music they may and may not create and allows them to prevent the public from hearing music that does not fall within their rules. For people to make an informed decision about whether the major record labels and existing copyright law serve the interests of musicians and the public, they need to be able to hear the music that is being suppressed. The Grey Tuesday protest is about ensuring that this music is widely available so that the public can make informed decisions. Copyright was created by Congress to â€œpromote the progress of science and the useful arts.â€� Your actions violate that purpose. Any lawsuit against us will bring more attention to both the protest and the need for serious copyright reform, and we expect to win any case on fair-use grounds.
Our posting of the Grey Album on Downhill Battle is a political act with no commercial interest and fits well within fair use rights. Lawyers have advised us that we can ignore your demands number 2, 3, and 4 that are listed at the bottom of your letter. EMI has no legal right to make these demands and we will not comply with them. Furthermore, if EMI attempts to disrupt our protest by sending takedown letters to participating websites, ISPs of participating websites, or any upstream ISPs, we will file a counter-suit against you. We consider any attempts to stifle this protest to be an abuse under section 512F of the DMCA.
February 10, 2004: The Grey Album, a remix by DJ Danger Mouse of the entire Jay Z The Black Album using nothing but Beatles The White Album samples throughout just received a cease and desist order from EMI.
February 20, 2004: More on why EMI can shut down Danger Mouse under federal copyright law, 17 USC S. 106(2), from Andrew Raff, as well as a discussion of drawbacks of the current copyright regime with regard to sampling and some suggestions for a better sampling future. And a blog post roundup.
February 19, 2004: Downhill Battle is organizing Grey Tuesday, February 24, 2004: "a day of coordinated civil disobedience: websites will post Danger Mouse's Grey Album on their site for 24 hours in protest of EMI's attempts to censor this work."
February 16, 2004: Andy Baio of Waxy.org, one of the sites to mirror copies of the mp3, was given the courtesy of a cc on a take down notice to his ISP from EMI's Legal and Business Affairs team who prepared the letter in conformity with the requirements of 17 USC 512(c).
February 14, 2004: Wired picks up the story and reports that the album is selling on ebay for as much as $81; Illegal Art has the tracks available for free. Rolling Stone reviews it and Downhill Battle proclaims that EMI is stifling creativity.
Sidebar: Notes from the (Legal) Underground has some great ideas for DJ Danger Mouse's next project.
Also, a reader who calls himself DJ Spinach offers a tip saying that The Grey Album is even better if you:
Burn/listen to the tracks in the same order that they fall in on Jay-Z's album, NOT the 'official' track order according to danger mouse himself and numerous other web sites...(except, I put 'interlude' a.k.a. 'lucifer 9' first). It sounds so much better, because the flow of the vocals is more like the Jay-Z album. I think the DJ had it planned out so that it would work this way, too. ;) Trust me! Burn your CD in this order:
Interlude a.k.a. Lucifer 9 <- - - - Revolution 9 + I'm So Tired
December 4th <- - - - Mother Nature's Son
What More Can I Say <- - - - While My Guitar Gently Weeps
Encore <- - - - Glass Onion + Savoy Truffle
Change Clothes <- - - - Piggies
Dirt Off Your Shoulder <- - - - Julia
Moment of Clarity <- - - - Julia* + Happiness is a Warm Gun
99 Problems <- - - - Helter Skelter
Public Service Announcement <- - - - Long, Long, Long
Justify My Thug <- - - - Rocky Raccoon + Revolution 1
Allure <- - - - Dear Prudence
My First Song <- - - -Savoy Truffle* + Birthday* + Can You Take Me Back* + Cry Baby CryThe Grey Album/White Album Sample List above [Danger Mouse Remix <-- Beatles original] are via Oliver Wang and Hua Hsu except for the *'s which I added.
and that the web sites participating in Grey Tuesday should offer the uploads in that order. His advice, You decide.
Category: DMCA | P2P Battle