Today is Ash Wednesday, a day that good Christians give up something dear, lazy Christians give up something they don't care about, and the rest of us wish we were in New Orleans yesterday. But something else also happened yesterday than beads and debauchery. Yesterday was [Grey Tuesday].
What the hell is Grey Tuesday, you're asking? Let's start at the beginning. Jay-Z, rapper extraordinaire, dropped his latest album on the world not too long ago, titled [The Black Album] ([Amazon]). With this album, Jay-Z announced his retirement. Maybe as a going away gift, maybe as just business, he released a cappella version of the album through his label, Roc-a-fella, specifically designed for remixers to have a spin. So, [DJ Danger Mouse] (né Brian Burton) took him up on the challenge, and how. Thinking creatively, he didn't just remix The Black Album, he [mashed] it up with The Beatles' The White Album ([Amazon]), using the latter as the sole source material aside from Jay-Z's vocals. This novel production, titled appropriately The Grey Album, despite only being distributed underground in a small pressing of 3000, quickly garnered critical acclaim from such as
But not EMI. On February 10, EMI sent a cease and desist (LegalThreat) to stores and websites hosting The Grey Album, ordering the destruction of all copies, citing ownership of The White Album. Ok, there are many possible complaints; but ignoring the anti-copyright wanking this is a dangerous claim. Even with copyright, since 1909 once a song is commercially released, it's been considered reasonable to "cover" it for a royalty fee, for which there already exists a moderately reasonable pricing structure. The record industry has vigourously defended their right to cover, arguing "the result has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice." (unknown Congressional report, 1967, as qtd. in Lessig ) However, The Grey Album was not covering The White Album, but sampling it and remixing it, beat-matching it with The Black Album's vocal track. There is no licensing structure for this, no way to "beat-match" hip hop, dance, and electronica's new digital styles to the old analog ways of building on music through FairUse.
Admittedly DJ Danger Mouse didn't ask anyone for permission and didn't pay any royalties. He just did it. "I had seen that there were these a cappella Jay-Z records. I was listening to the Beatles later that day, and it just hit me like a wave. I was like, `Wait a minute — I can do this.'" (Rolling Stone, [ibid].) But then, he wasn't out to make money either. He just wanted the album to be heard.
So, perhaps if this was just a junk record that no one cared about, this might have slipped under everyone's radar, but for an album that had already attracted its share of fans it was a gigantic poke in the eye.
After a year where the Recording Industry Association of America (RIAA)'s crusade against piracy had grown to launching multi-thousand dollar lawsuits against ordinary people using filesharing networks, including several minors — a move so dire that Pepsi exploited it in its 2004 Superbowl ad [(apple.com)] [(Real; ifilm.com)] — the collective eyes of the 'Net were already puffy and red.
Maybe if EMI hadn't acted so hastily, so contemptuously, it might have been understandable. But there it was. EMI wasn't concerned at all about the artistic merit of The Grey Album, which went beyond just its good sounding vibes.
They just saw what was theirs out of their control, and that was simply unacceptable to them. And not even a thought to the obvious response, so clearly summarized by Glenn Otis Brown of CreativeCommons: "[With all that hype,] Why not just sign the guy? Why not license the record, and have everybody make a bunch off of it?" (Wired News [ibid]).
So the 'Net took action.
As a general fuck you right back at them, it began when waxy.org [posted] the full album the day after the initial EMI legal action against DJ Danger Mouse. This blew his bandwidth, but illegal-art.org [followed] the day after. On Friday the 13th, he sucked back a smooth cease-and-decease letter from EMI straight to his ISP, citing the DigitalMilleniumCopyrightAct?.
Ok, that meant war.
Enter Grey Tuesday. On Mardi Gras, 2004, when not all of us could be partying in New Orleans, over 400 websites decided to do their own thing, organized by music activists [Downhill Battle] under the banner of Grey Tuesday. They collectively agreed to get word of the Grey Album out there. Most merely changed their websites to grey for the day, but in the end over 170 websites braved lawyers and posted the full album for download. They did this knowing full well they were violating the terms of EMI's cease and desist order.
Unsurprisingly, EMI quickly sent cease-and-desist letters to these websites as well, easily identified from the long list at http://greytuesday.org. Downhill Battle received a [letter] February 23. Noting at least that the online release of the album was out of Danger Mouse's control, the letter does egregiously claim that distributing the album online was against the artist's wishes. They quote a Reuters (February 17, 2004), "The artist, whose real name is Brian Burton, has agreed to comply with the order and will no longer distribute copies," and "[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," and conclude:
However, in his [press release] Danger Mouse called it flattering.
In Downhill Battle's [response], they made it very clear that this was a PoliticalAction by CivilDisobedience? against the state of CopyrightLaw. They did it as a form of CivilDisobedience?; a Gandhiesque attempt to demonstrate what they saw was the insanity of a copyright law that restricted artistic freedom instead of enabled it. They did it to get a good album out there. They did it to show that the current situation kept a good album from getting out there.
Unlike Downhill Battle, many quickly took the album down. Most of the time, this was not their choice. EMI used the DigitalMilleniumCopyrightAct? to go after their ISPs, and ISPs generally comply with such complaints instantaneously as it is not their prerogative to spend money defending their users. This got really fucked up when they started sending preemptive cease-and-desists to websites only intending to change their websites grey in a show of solidarity. In [response] to one such DMCA letter, Sean Shaghagi writes "I merely intended to turn "grey", tomorrow. However, the cease and desist letter just furthers my conviction that copyright law is f'd up and needs dramatic change."
Nonetheless, many did not back down. The album got out there. Ironically, the major contributor to dead sites was not LegalThreats, but incredible bandwidth usage, blowing bandwidth caps and bills.
What an example of CultureJamming?, and of musical jamming.
And for what it's worth, DJ Danger Mouse's take on his own album:
The Bad Plus
The original [waxy.org] page has a zillion comments.
While in general I continue to support CopyrightLaw in its philosophical roots, there are important limitations that must be granted. First, the incredible term length of current copyright is of course ridiculous. The original 14+14 year rule makes more sense. Second, compulsory licensing (WikiPedia:Compulsory_licensing) has its advantages and disadvantages, but if the recording industry uses it for analog reuse, then it makes natural sense to extend the law to digital reuse.
In a real practical sense, this case is not necessarily about FairUse, but about distribution. The protesters didn't create the work, but they distributed it in full awareness that it was considered illegal by the "owner." However, the case is more complicated since the concept of ownership is confused.
And finally, in a really practical sense, EMI did exactly the wrong thing. Would sales of The White Album increase due to this album being out there? Yes. If they really wanted to make money, they could have as Glenn Otis Brown said, signed DJ Danger Mouse. Absolutely the dumbest ConflictResolution. The result of letting rabid anti-social lawyers have a go at the copyright "problem" without sanity keeping them in check.
I'm not convinced in this case that The Grey Album is an illegitimate work in the sense that copying Metallica's songs right of their album and distributing them would be clearly illegal. Since DJ Danger Mouse is, counter to the EMI claim, perfectly happy with the situation, as is Jay-Z and Roc-a-fella, I think it's a fucking dumbass case. For such a good album, it only serves to exemplify that the Big Copyright Owners are complete bastards and thus CopyrightLaw as it stands is deleterious to society.
Oh well. Goody for me. It's a kickin' album. Thank you to all who did this. -- SunirShah
See the list on RightToSample.
Heneghan, B. P. (2001). The NET Act, fair use, and willfulness — Is Congress making a scarecrow of the law? Journal of High Technology Law, 1. Available from http://www.law.suffolk.edu/stuservices/jhtl/V1N1/BHENEGHANV1N1N.pdf
The above written by SunirShah to the sound of of The Grey Album. This is in stark contrast to his general antidisestablishmentarianism; so, if you vomit in shock, at least let it not be about who wrote it. This rap album doesn't suck, so it deserves to live.
Maybe I'll get you to sign up to PirateMusic yet.
I said I stand by copyright. The more pragmatic legal objection in this case is that we don't have a comparable right to sample in the digital age as we were granted a right to cover in the analog age. While piracy is about distribution, the GreyAlbum case is about derivation. If DJ Danger Mouse could simply pay a royalty to EMI for The White Album, he could have, and that would be the end of it the story. Royalties are a good TransactionFee to limit an explosion of poor derivations, and thus the "artistic integrity" argument against the right to sample is a bit specious, especially since we have all heard really bad covers. Note that garage bands can cover without problems, and so basement musicians should be able to sample without problems — until they become famous enough to be noticed. (Ah, the tragedy of success.) -- SunirShah
See also the very interesting story of the [Amen Break] (WikiPedia:Amen_break).
More on RightToDerive...