A Touch of Grey

Unlimited supply, EMI, there is no reason why, if the label sues there's sure to be a fight

Remember that big CD price-fixing scandal a few years ago? Remember how the major labels agreed to divide up a cash settlement among everyone who'd hand over their Social Security numbers? If you were one of those people, you probably got your check for $13.86 last week. That's enough to prop up your favorite struggling record store by buying a used or budget-line CD. It's too late to go to Park Slope's Holy Cow, which recently shut its doors, but there's always Midnight Records, which is closing this Saturday after 20 years in Chelsea, or Tower Records, which filed for Chapter 11 protection a couple of weeks ago. (Except it turns out Tower's not in serious danger: All their bankruptcy really means for consumers is that a few West Coast stores might close, and the family of founder Russ Solomon will own 15 percent of the company instead of all of it.)

Alternately, $13.86 is roughly the going rate for a 50-pack of blank CD-Rs—just in time to burn copies of DJ Danger Mouse's The Grey Albumfor all your friends! And if you've been having a hard time finding the already infamous mix of Jay-Z's vocals from The Black Album over samples of the Beatles' White Album, it was a lot easier on Mardi Gras, or "Grey Tuesday" if your French isn't so good. The music-biz activist organization Downhill Battle organized a one-day act of civil disobedience: Roughly 170 Web sites posted files of the entire Grey Album, and several hundred more made their background color gray in solidarity. Downhill Battle estimates that over 100,000 copies were downloaded on February 24. Danger Mouse, in a press release, announced that he was flattered; Jay-Z (who did, after all, release an a cappella version of his entire album to encourage people to "remix the hell out of it") had no comment.

And the Beatles' record company, Capitol, was not at all pleased, even though sales of the White Album have reportedly spiked over the past few weeks. Capitol's lawyers sent out cease-and-desist letters to some sites listed on greytuesday.org—many of them before the files had gone up—claiming that they were violating Capitol's copyright in making public "this unlawful recording," and that "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."

Downhill Battle itself framed Grey Tuesday as a political protest for copyright reform. Under present law, an artist who wants to cover a song, even against the composer's wishes, can automatically get a "compulsory license" that costs 8.5 cents per copy. But there's no such thing as a compulsory sampling license: If you want to sample even a fragment of somebody else's recording, you have to negotiate directly with the copyright holder, who can demand an astronomical fee or refuse outright—which the Beatles have always done. (Nobody worried about this stuff back when they were making loops for "Revolution 9.") Capitol parent company EMI's Jeanne Meyer told The New York Times that "there is a well-established market for licensing samples, and [Danger Mouse] didn't participate in it." It would have done him no good; as Downhill Battle's Nicholas Reville notes, "There's no way Danger Mouse could've gotten authorization, even if he was a famous producer on a major label."

What happens next isn't clear. The Electronic Frontier Foundation has noted that EMI might not be able to claim federal statutory infringement penalties for the White Album, since it was made before 1972. And the Digital Millennium Copyright Act, ordinarily the bane of file-traders, might even come to The Grey Album's rescue. C. Scott Ananian of cscott.net, one of Grey Tuesday's participants, got one of the cease-and-desist letters, and comments via e-mail that "this was pretty incompetent legal work: The DMCA (love it or hate it) provides a straightforward means to remove disputed content. . . and EMI's lawyers did not choose to use it."

"If they sue us, we will fight it," Downhill Battle's Reville says. "The DMCA says that it's an abuse of the statute to go around issuing cease-and-desist letters when there is a fair-use right. That's basically what EMI is doing."

 
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