February 25, 2004

Defiant Downloads Rise From Underground

By BILL WERDE

http://www.nytimes.com/2004/02/25/arts/music/25REMI.html?th

The New York Times

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 Album."

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.

(I saw this originally on the list below - marc)

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