THE MAJOR LABEL filesharing lawsuits are old news. In the press, the suits quickly became more of a concept than a reality. Since coverage of the filesharing issue is usually spurred by RIAA announcements and then reported in newspapers’ business sections, analysis has focused on whether the suits are having an effect and whether suing customers is a good strategy. Meanwhile, the lawsuits have continued to financially devastate working families, pushing many into bankruptcy. When told that a family being targeted has no money to meet their demands, the RIAA’s lawyers have literally suggested that parents put a $5,000 settlement on a credit card.

In the fall, we created a Defense Fund to help some of the families being sued, and we raised a modest amount of money– a little over $4,000 so far. Spread across a dozen people it’s not very much, but it does help.

Today, we’re adding another person to the fund, Adelita Shule from Austin, Texas. Adelita needs $3,000 to meet the RIAA’s settlement demands, but can’t come close to affording this. And she is in no way unique; we’ve talked with dozens of families being sued and many are in similar situations. Below is an excerpt from a letter that Adelita’s pro-bono lawyer sent to the RIAA, who still refuse to drop the suit. It gives some sense of the human impact of these lawsuits, and a hint of the single-minded mentality of the major label executives that are continuing to target more families.

Read the full letter in html or see an image of the original.

YESTERDAY WE SPOKE with the head of BigChampagne, a company that tracks filesharing activity. They ran an analysis of filesharing searches on Tuesday and found that the “Grey Album” was being searched for as often as any music superstars, such as “Britney Spears”, “Outkast”, or “Ludacris”. Amazing.

GREY TUESDAY EXCEEDED everyone’s expectations. When we put the word out about this protest, we had no idea how many sites would join in (over 400 did). When EMI’s lawyers sent legal threats on Monday afternoon to people who were planning to host the album, we had no idea how many would risk getting sued to make this important political stand (over 170 did). We didn’t know we’d get messages of solidarity from prominent political and intellectual forces like the EFF and Lawrence Lessig, but we did (and thanks). All of us who took part in this protest have done a lot to spur a rethinking of copyright law in terms of what’s good for musicians and what’s good for our music culture. And we’ve made it more apparent than ever how the major record labels have twisted the original purpose of copyright law (“to promote the progress of science and the useful arts”) in order to suppress music that doesn’t flow through their system.

And there are other pressing problems:

• Payola. – The five major record labels pay radio stations to play their songs, making it impossible for independent labels to get mainstream airplay. It’s simply mind-boggling that this has become an accepted practice, and payola is just as much a problem now as it was when Congress tried to outlaw it in the 1950’s More info.
• Coercion – Musicians know that unless they sign with a major, they will be effectively blacklisted from radio. So if they want their music to reach a large audience, they are forced to accept whatever record deal a major label offers.
• Exploitative Contracts – Major label contracts mean that when you spend $15 on a CD, the musician gets less than a dollar, and in many cases they get nothing at all. It sounds almost impossible, but it’s a fact of the modern record industry. More info
• Our Music Culture Suffers – When some of the best musicians are barred from mainstream radio and when many of the songs we do hear are only there because the station has been bribed, music suffers.

These problems persist because 85% of the music market is controlled by a small cartel of five major labels. A quick glance at the existing economy of independent record labels reveals how things could be different. Independent labels don’t bribe radio stations, they can’t force musicians into contracts, and they don’t sue independent hip hop producers for sampling their records (especially when it’s clearly boosting their own sales). There’s no longer any economic rationale for huge consolidated labels that control production, marketing, and distribution (not to mention that these are some of the worst-run companies in the world). The only reason the major labels have managed to stay alive is through anti-competitive bullying and collusion; just ask any independent label owner. But if the major label monopoly fell apart tomorrow, independent and artist-run labels would quickly fill the void and we’d finally have a genuinely competitive music business. Musicians, their fans, and the public as a whole would be far better off.

There’s nothing new about this analysis; musicians have been complaining about the major label system for years. What’s new is that change could actually become a reality. Peer-to-peer networks and home CD-copiers are pushing the major labels’ business model to the point of collapse. Fans, no longer held captive, have no reason to keep paying into a corrupt system. Meanwhile many independent labels and musicians are thriving: the cost of recording an album (or building a recording studio) is plummeting, and musicians who want to book a tour or sell music directly to their fan base have more options than ever before. The major record labels are on the brink, and there’s a chance to break their monopoly forever.

Everyone who took part in Grey Tuesday showed that people who care passionately about music can band together to support it and to defend it. EMI tried to shut down the Grey Album, and we simply said no. If we now decide that we want to permanently change the shape of the music industry, the major labels have no way to stop us.

UPDATE:After a quick preliminary survey of sites that hosted files during Grey Tuesday, we are certain that the Grey Album was the number one album in the country yesterday (by a lot). Danger Mouse “moved” more units than Norah Jones and Kanye West, with over 100,000 copies downloaded. That’s more than 1 million digital tracks. More details soon.

2nd UPDATE: The Electronic Frontier Foundation has issued a brief legal analysis of the Grey Tuesday protest, which strongly supports the fair-use rights of the protesters. Read it here.

Some press coverage of Grey Tuesday (and click here for the latest from google news):

-New York Times “Defiant Downloads Rise From Underground”
-E! Online “Grey Tuesday: Copyright or Wrong?”
-MTV News news headlines
-BBC News “Beatles remix web protest”
-NME “GREY DAY”

Grey Tuesday – Historic Online Protest

TODAY IS Grey Tuesday. We’re very excited about this protest, and it’s amazing that so many sites are continuing to post the Grey Album even after the legal threats from EMI (read the previous post for EMI’s letter and our response).

We are proud to be hosting the Grey Album today and to be coming to you in all grey (classy and spooky). Before you download the album from our site, please consider other ways of getting it since we have limited bandwidth on our server. You might try a friend or a filesharing network (zeropaid can help you find a client for pc, and we like acquisition for mac). For bandwidth reasons our zip file of the album is on a separate server that we rent. As of this writing, the link is working; if you find that it’s broken, it’s probably because of server overload and we’ll try to find some other way to make it available. Here’s the link to Danger Mouse’s Grey Album. Enjoy it and pass it on.

3rd Update: We’ve had a second offer for a download link. You can find the files here: mathcaddy.com.

2nd Update: After our hosting of the Grey Album was been overwhelmed by traffic and shut down by our ISP, one of the other sites participating in the protest generously offered to take us on– you can find the album here: tomservo.net. We’re also continuing to post new sites that are hosting the album at greytuesday.org.

Mid-day update: Grey Tuesday has been covered on Tech TV, MTV News, Wired.com, in the LA Times (no link), and other spots. More coming tomorrow.

WELL THINGS JUST GOT more personal. Downhill Battle has received a cease and desist letter from EMI’s lawyers demanding that we do not proceed with plans to post the Grey Album on this website. Many of the other sites that are participating in the Grey Tuesday protest have received something similar. Needless to say, Downhill Battle will be hosting the Grey Album tomorrow– these letters are the reason why we called for the protest, the reason why people chose to join the protest, and they’re the reason why the protest needs to continue. Our response to EMI appears below and you can read the cease and desist letter that we received, here.

For more about fair-use rights see the EFF’s Fair-Use FAQ and for more on the abuse of cease and desist letters, see chillingeffects.org.

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Downhill Battle’s response to EMI

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 waver 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.

Sincerely,

Nicholas Reville
Holmes Wilson
Co-Founders
Downhill Battle (downhillbattle.org)

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Adam Brault, who is participating in Grey Tuesday, has his own reply to the cease and desist letter that he received from EMI. It’s brilliant and much more succinct. Read it.

WE’VE JUST BEEN TOLD that the Electonic Frontier Foundation (EFF) will be making their masthead grey as part of the protest tomorrow. It’s very nice to have them on board.

There’s also another big development that’s developing, which hopefully we’ll be able to update you about soon.

TOMORROW IS GREY TUESDAY and things are getting really busy; emails are pouring in from people who are going to host the album and we’ve been hearing from reporters all day. Everyone is amazed at how many sites have signed up for this protest– the press is starting to realize how much frustration there is with the major label monopoly and the way they control music. greytuesday.org

Without getting distracted from the protest, we have to point out the recent FCC report that found no risk of low-power community radio stations interferring with big commercial stations. The FCC is urging Congress to lift restrictions that have kept low power stations out of most cities. Radio industry lobbyists are still trying to push the now fully-discredited argument that interference will be a problem, but really they just don’t want competition from stations with locally-relevant content that don’t have to run commercials. And it looks like Congress might finally take some action: thank you John McCain. Your number one spot for learning more about this issue and getting involved is Prometheus Radio Project.

ONE THING THAT’S GREAT about the Grey Album is that it makes our arguments for us: as soon as people hear it, they know that it’s real art. So as EMI’s lawyers try to censor this record, everyone can see that they’re not trying to protect music, they’re just trying to control it. EMI is part of the major label monopoly: for decades they’ve controlled musicians, distribution, and the songs people hear on the radio. Until we can break that monopoly, they’ll continue to suppress anything that doesn’t flow through their system. And since that includes some of the best music being made, we shouldn’t wait another minute to force a change.

Press outlets are starting to pick up the Grey Tuesday story. MTV News discussed it in this music news roundup. And there’s a great piece in The Register, the British IT industry journal. We love their headline: “Music fans beg to buy music” (begging to buy non-major label music, of course). We also really like The Register’s editorial policy of consistently referring to the major labels as “pigopolists”.

IT’S HARD TO PROVE a negative, but it appears that google has taken the Illegal Art page that hosts of the Grey Album out of their database. As of late yesterday, searches like Illegal Art and Grey Album gave the Illegal Art Grey Album page as the number one result– now it’s gone. Even searching for the hosting url itself gives this, while other Illegal Art urls give results that look like this. So, did someone at EMI take the censorship campaign to google? Maybe you can ask for us: comments@google.com.

UPDATE (2/23): The illegal art page is back in google. Could have been just an updating oddity.

Reuters also reported that eBay had removed listings of the Grey Album. But a quick check now reveals listings that read like this: “You are bidding on CD label / cover art, you will receive a FREE ‘mystery’ CD when you purchase this item.” It’s going to be very hard to keep this one down.

Meanwhile Grey Tuesday has shot to the top of blogdex.net, a site that tracks the most popular new links. We’ve been deluged with messages from sites that are joining the protest; we expect to be in the hundreds by the end of the weekend. This looks like it’s going to be big.