The sites listed on greytuesday.org as participants in tomorrow’s online protest, in which many sites will make the Grey Album available for free download, have received C&D letters from Capitol Records. Not all that surprising, since the samples in the Grey Album aren’t cleared and there’s no serious argument that distributing it isn’t copyright infringement.
Maybe—maybe—that each individual sample is a de minimis infringement compared with the whole White Album. Choice of law would be really important, since the sound recording of The White Album is protected only by common law copyright, not Federal copyright law, since sound recordings were not covered by Federal copyright law at the time The White Album was published. This would be a state law issue, and one state’s common law copyright rules might make distributing the Grey Album willful infringement, while others might not protect the sound recording of The White Album at all. Whoever owns the rights to the musical works underlying the White Album could certainly sue and win under Federal copyright law, since musical works were protected at the time The White Album was published. But Michael Jackson has other things on his plate right now.
The C&D’s do two things, one appropriate, one inappropriate. First, they put the webmaster on notice that the Grey Album contains copyrighted material, so if they go on and post it, the infringement will be willful and the penalties will be greater. (Edit: That assumes that willfulness increases penalties under whatever state copyright law will be used. I don’t know anything about state copyright law, and neither, by and large, does anybody else, so it’s hard to say for sure.) Second, they scare the bejeezus out of the recipient by making demands for which there is no legal basis. Here are the demands in the C&D:
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.
Number one is fine; they actually have to do that. Numbers two through four have no legal basis, and are wishful thinking on Capitol’s part. While, in litigation, Capitol could get all of that information in discovery, there’s no duty to turn it over without a court order. And, in general, the mere threat of a lawsuit does not give rise to the duty to retain everything that might be helpful to the other side. The bit about paying for prior distributions is an invitation to settlement discussions, even if it’s worded to be as intimidating as possible. It’s a nice piece of intimidation, which is its purpose. I’m sort of disgusted, but sort of impressed.
What should EMI/Capitol have done? They should have licensed Jay-Z’s rhymes from Roc-A-Fella Records and started selling copies of the Grey Album, at least on iTunes and Rhapsody if not on CD. How could they? The Grey Album is a derivative work that uses its source material unlawfully, and 17 U.S.C. 103(a) denies it independent copyright protection. Why do I like this solution? Everyone gets what they want. DJ Danger Mouse gets massive public exposure. (He has stated that his expectation interest in sales of the Grey Album was $0. His expectation interest is vindicated nicely.) EMI/Capitol and Roc-A-Fella get to make money for their shareholders and get to twirl their moustaches after teaching DJ Danger Mouse a lesson by appropriating his album. And the public gets to hear the album, much of which is really rather brilliant.