p2pnet.net News:- As the whole world knows – quite literally, thanks to the Net – Britain’s EMI is seriously upset by DJ Danger Mouses Grey album, which uses elements from Jay-Z’s Black Album and The Beatles White Album.
EMI controls all Beatles sound recordings for Capitol Records. Sony Music/ATV Publishing controls the publishing side. And both are, of course, founding members of Big Music whose avowed purpose in life is to make sure all music ‘products’ are the sole property of its members.
And EMI has been sending out cease and desist ‘orders’ and emails to everyone who’s had anything to do with making the album available.
It was apparently being sold online by eBay, at one point. We wonder if eBay received a C&D?
Anyway, DownhillBattle got on the case and designated today as Grey Tuesday under which a large number of sites are hosting the Grey Album for 24 hours, and others have turned their sites Grey.
J. Christopher Jensen, EMI’s lawyer, has emailed every site on the DownhillBattle.org We’ll be posting the Grey Album list with dire threats.
To give you the full flavour, among other things, Jensen sternly instructs people on the receiving end to:
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
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.
There’s a copy below.
But given that it was emailed and no one has signed for it, in effect, we wonder if that taints it from a legal perspective. We also wonder if it went to the site owners outside of the US and if it so, how much, or how little, weight it carries outside of America.
For now, the people at DHB did, naturally, got their very own copy and their response was:
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 ?promote the progress of science and the useful arts.? 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.
Downhill Battle (downhillbattle.org)
Cowan, Liebowitz & Latman, P.C.
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 – as well as the valuable intellectual property rights of other artists, music publishers, and/or record companies – 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.
We accordingly demand you:
1. 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;
2. 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;
3. 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
4. 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.
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.
J. Christopher Jensen