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List:       dmca-discuss
Subject:    [DMCA_Discuss] NYT: Grey Album
From:       "Jon O." <jono () microshaft ! org>
Date:       2004-02-26 23:51:33
Message-ID: 20040226235133.GB75660 () networkcommand ! com
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http://www.nytimes.com/2004/02/25/arts/music/25REMI.html

Defiant Downloads Rise From Underground
By BILL WERDE

Published: February 25, 2004

ore 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 \
Album."  
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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.


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