Stay Free!/Illegal Art told to "cease and desist"
carrie at stayfreemagazine.org
Wed Feb 25 10:45:29 EST 2004
Ah, the saga of DJ Dangermouse continues. EMI sent out a cease and
desist notice to Stay Free!/Illegal Art and about 150 other websites
this week, claiming "willful violation of [copyright] laws." EMI
wanted to prevent Grey Tuesday, an online protest of Capitol's
attempt to squash Dangermouse's "Grey Album," from taking place. The
New York Times article below has the crucial background info.
What this means for Stay Free! is as of yet unclear. I'd much rather
report on other people's lawsuits than get dragged into one myself,
but, having spent over a year praising artists who have stood up to
this sort of corporate bullying, we can't very well duck out
ourselves.... so we haven't removed the contested mp3s (online at
http://www.illegal-art.org ), and don't plan to. With luck, Capitol
will back down and realize that suing a bunch of marginal publishers
is only going to bring more publicity to an album they'd like to
suppress. But if they do come after us, we'll have a rock solid fair
use argument. Prof. Zittrain's comment (below) notwithstanding, there
are exactly zero laws that state that what we're doing is illegal.
Nor, for that matter, are there laws forbidding Dangermouse from
appropriating the Beatles's recordings -- these legal threats are all
based on the precedent set by a single court case from the 1980s (See
O'Sullivan v. Biz Markie,
http://www.illegal-art.org/audio/historic.html ). A habit, in other
You can find the cease and desist letter on the Downhill Battle site
(I would post it myself but I'm lazy... and, besides, the letters are
all the same):
And here's the man who signed it:
all for now,
Defiant Downloads Rise From Underground
By BILL WERDE
Published: February 25, 2004
More than 300 Web sites and blogs staged a 24-hour online protest
yesterday over a record company's efforts to stop them from offering
downloadable copies of "The Grey Album." A popular underground
collection of music, "The Grey Album" mixes tracks from the Beatles'
classic White Album with raps from Jay-Z's latest release, "The Black
The protesters billed the event as "Grey Tuesday," calling it "a day
of coordinated civil disobedience," during which more than 150 sites
offered the album for download. Recording industry lawyers saw it as
24 hours of mass copyright infringement and sent letters to the Web
sites demanding that they not follow through on the protest.
"The Grey Album" is a critically praised collection of tracks created
by Brian Burton, a Los Angeles D.J. who records as Danger Mouse. Mr.
Burton created the album by layering Jay-Z's a cappella raps from
"The Black Album," released on Jay-Z's Roc-A-Fella label, over music
he arranged using melodies and rhythms from "The Beatles," commonly
known as the White Album.
Mr. Burton did not seek permission from EMI, which owns the
publishing rights to the White Album. When EMI learned that Mr.
Burton was distributing "The Grey Album" early this month, its
lawyers sent him a cease-and-desist letter, and Mr. Burton complied.
EMI views any distribution, reproduction or public performance of
"The Grey Album" to be a copyright violation. "They may say EMI is
trying to stop an artwork," said Jeanne Meyer, an EMI spokeswoman,
referring to the Web sites, "but they neglect to understand that
there is a well-established market for licensing samples, and Mr.
Burton didn't participate in it."
Some protesters say "The Grey Album" illustrates a need for revisions
in copyright law. They say that sampling should be allowed under fair
use of copyrighted material, or that a system of fair compensation
should be created to allow for sampling.
"To a lot of artists and bedroom D.J.'s, who are now able to easily
edit and remix digital files of their favorite songs using
inexpensive computers and software, pop music has become source
material for sonic collages," said Nicholas Reville, a co-founder of
Downhill Battle, an organization of music industry activists who
promoted Grey Tuesday.
Jonathan Zittrain, a director of the Berkman Center for Internet and
Society at Harvard Law School, said the issue is indeed a gray one.
"As a matter of pure legal doctrine, the Grey Tuesday protest is
breaking the law, end of story," Mr. Zittrain said. "But copyright
law was written with a particular form of industry in mind. The
flourishing of information technology gives amateurs and
home-recording artists powerful tools to build and share interesting,
transformative, and socially valuable art drawn from pieces of
popular culture. There's no place to plug such an important cultural
sea change into the current legal regime."
He said that under copyright law a judge can impose damages as high
as $150,000 for each infringement.
To create a collection like "The Grey Album" legally, an artist would
first have to get permission to use copyrighted material. Then he
would have to negotiate compensation with the copyright holder. Many
artists, however, like the Beatles, will not allow their music to be
sampled. But even if permission is granted, it is common for a
copyright holder to request more than 50 percent of publishing rights
for a new song created from the copyrighted work. 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.
Around the same time Mr. Burton received his cease-and-desist letter,
his album was receiving critical acclaim in Rolling Stone magazine.
The album took on a distribution life of its own online, circulated
via file-trading sites and on e-Bay, where bootleg CD's were selling
for as much as $80 yesterday. Two weeks ago EMI issued
cease-and-desist letters to an undisclosed number of record stores
and e-Bbay sellers.
Downhill Battle went live last Wednesday with a site devoted to the
protest, Greytuesday.org. In 12 hours it had more than 40 sites
signed on to participate. Within two days, Greytuesday.org reached
the top ranking on Blogdex and Popdex, Web sites that track which
sites are being linked to from blogs.
Monday night lawyers for EMI issued cease-and-desist letters to more
than 150 Web sites participating in the protest. The letter said
distribution of "The Grey Album" "will subject you to serious legal
remedies for willful violation of the laws."
By yesterday afternoon some of the Web masters of the protesting
sites said they had served 85 to 100 copies of the album, while other
reported as many as 1,000 downloads.
Editor, Stay Free!
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