February 26, 2004

C&D'd on The Grey Album

Napsterization received a Cease & Desist order from Capital Records for hosting the Grey Album, though due to the change in site hosting and my SFTP issues just after the change, I wasn't able to participate in this civil disobedience and host the album Tuesday, and so I linked to others hosting the album. The letter is below under more and while it was sent Monday, I did not receive it until the middle of last night.

But I want to point out demand #2:

Well, that feels very "house unamerican activites" committee of them. So I'm guessing they're going to get a lot of cooperation on that one. Not to mention, they demand a full accounting of all your activities! Now, young lady, or we're turning this car right around and going straight home. Spank, spank, spank!

Does it matter if you own the two albums outright already, and simply want the blended version, remixed? The point here is that copyright goes too far, and so any remix is illegal-art without permission, unless it's a public domain work. The properties of digital media work in direct opposition to copyright law, still currently based on analog media which is almost always tied to some physical media. It's time we changed the copyright law to reflect what digital media really is: divorced from physical media and able to move back an forth between the physical and pure byte-state, flexible, recombinable, and with proper metadata machine-readable and alterable, easily distributed across the time and space of the internet; it's information that can no longer be sold just because it must be on physical media but rather must be reconceived as something highly copyable, transformable, and distributable for free. It is different, and the question is how long it will be before the law reflects reality. My guess, as soon as the kids who know this on a cellular level grow up, and there is a critical mass of adults that see these things. Until then, record companies like EMI and Capital can hide behind analog copyright to attempt to protect themselves. But as you read the letter, you realize they aren't protected in any practical way at all.

Subject: The Grey Album and Misappropriation of Capital Records, Inc.'s Sound
Date: Mon, 23 Feb 2004 16:22:29 -0500
Thread-Topic: The Grey Album and Misappropriation of Capital Records, Inc.'s
Sound Recordings
Thread-Index: AcP6UyP/hvf10h3qQmablc8nteX0fA==
From: lawyer
To: "Contact"
X-Spam-Checker-Version: SpamAssassin 2.63 (2004-01-11) on smtp-a.gkg.net
X-Spam-Status: No, hits=-4.4 required=5.0 tests=BAYES_00,HTML_FONTCOLOR_BLUE,
HTML_FONT_BIG,HTML_MESSAGE autolearn=no version=2.63

Cowan, Liebowitz & Latman, P.C.


1133 Avenue of the Americas * New York, NY 10036-6799

Telephone * Web www.cll.com * Fax

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:

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.



Posted by Mary Hodder at February 26, 2004 06:39 AM | TrackBack

Don't forget to submit your C&D to Chilling Effects... here: http://www.chillingeffects.org/dmca512/submit.cgi?TriggerID=15

Posted by: joe at February 26, 2004 10:52 AM

Check out the EFF's legal analysis... http://www.eff.org/IP/grey_tuesday.php

You could answer the demands as such (IANAL):

1. OK.
2. Do your own footwork.
3. 0 copies distributed (Napsterization just linke motherf*ckas!)
4. Too late... I destroy everything.

Posted by: joe at February 26, 2004 11:08 AM