Response to EMI’s Cease and Desist Letter

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.