Stay Free!/Illegal Art told to "cease and desist"

Carrie McLaren carrie at
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 ), 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, ). 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

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, In 12 hours it had more than 40 sites 
signed on to participate. Within two days, 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.

Carrie McLaren
Editor, Stay Free!

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