Downhill Battle seems to be on a roll, they have a new project called Grey Tuesday where they ask sites to post the mp3s from the Grey Album to their websites on February 24th. 90% Crud and SongBuddy plan to participate. [Update: Plans change. If you want to see why plans changed in this case, continue reading.]

[Update 2: Despite doing nothing illegal and publicly stating that I had no intention to mirror the Grey Album, Capitol Records has sent me two Cease and Desist notifications. I’ve submitted them to Chilling Effects and if you get one you can submit yours too. This will document how freaked out Capitol Records is about the Grey Album.]


I am an attorney for Capitol Records. We see that SongBuddy intends to participate in “Grey Tuesday” (described at ) by offering audio files of recordings from Danger Mouse’s The Grey Album at the website on Tuesday February 24, 2004. You must know that The Grey Album includes numerous unauthorized samples of Capitol-owned recordings of The Beatles.

We are surprised that you have decided to take this approach given that your site seems to profess respect for copyright issues. For example, your “Terms of Service” state “SongBuddy LLC respects copyright owners rights,” and your FAQ states:

Adding pirated (copyright infringing, really) music is against our Terms of Service and if we find out that you added pirated music, not only will we remove the song from the site but we will forcibly remove you from the site too.

At SongBuddy we respect the law. We work within the Digital Millennium Copyright Act (DMCA) to take down infringements that we are aware of. And since we make all our data available in machine readable formats, it’ll be pretty easy for a copyright owner to find out if you’ve added their music.

Also, since it’s fairly simple to find out where a song is being hosted, chances are that the web site that was hosting the songs will get taken down off the Internet. Then that super secret pirated music stash you found goes away forever, and under the DMCA you could wind up being fined thousands of dollars for putting the link on our site.

The bottom line is that piracy hurts artists and the whole goal of SongBuddy is to help artists. Some artists make their music available for you to listen to online, but some don’t. If you add music that artists don’t want on SongBuddy, you’re hurting the artist, the person who was hosting the music, yourself, and us. SongBuddy doesn’t enjoy dealing with piracy so do us a favor and don’t make us.

In fact, one “Tip” featured on the SongBuddy website reads:

Posting pirated mp3s on your own web server is a good way to get sued, plus we wind up having to deal with it. Whatever you think about the RIAA, take pity on us and don’t do it.

Again, we are surprised that SongBuddy would agree to participate in the “Grey Tuesday” event and offer unauthorized sound recordings to the public. Accordingly, we request that you reconsider your decision. Of course, we are compelled to reserve all rights and remedies with respect to this matter.

We would appreciate hearing from you by return email, or — if you’d like —
we can discuss.

Very truly yours,

David Helfer
EMI Music North America

This e-mail including any attachments is confidential and may be legally privileged. If you have received it in error please advise the sender immediately by return email and then delete it from your system. The unauthorized use, distribution, copying or alteration of this email is strictly forbidden.

This email is from a unit or subsidiary of EMI Music, North America

So am I going to capitulate? Hell yes! It’s one thing to do something right, it’s another thing to do something right when you are told by one of the lawyers who would sue you that he will sue you. I have neither the time nor the money to fight for what’s right.

Plus, he is right that it’s hypocritical for me to post copyright infringing songs and then go all over the site warning people not to post copyright infringing songs.

I guess I’ll just have to hope that SongBuddy and the web become a way to promote independent artists so much so that the music cartel is forced into enlightenment. Sorry if I’m letting anyone down.


11 responses to “Grey Tuesday”

  1. Charlie Murphy says:

    Being as smart as you are, I was initially surprised that you were planning on partaking in hosting the mp3’s. The person who came up with the “Grey Tuesday” concept should’ve known better and so should everyone else who planned on participating. With sites like Blogdex, it’s too easy for EMI or the RIAA to see who plans on giving support.

  2. George says:

    First, I think you’re overestimating my intelligence. It frequently gives way in favor of passions of mine, such as copyright reform or chili dogs.
    That said, I think the point of the Grey Tuesday project is for EMI and the RIAA to see who gives support. Not just EMI, but everyone who wonders whether copyright reform is worth it. If I weren’t running SongBuddy I probably would have ignored it (or at least I like to think I would).
    However, those things about not posting infringing music on SongBuddy weren’t put up for show and I do need to stand by my word.
    It should be noted that he didn’t request the songs be kept off 90% Crud, and it’s possible that the only reason I got that email was because I had listed a public policy on SongBuddy to avoid infringing materials. I’m not posting them on 90% Crud because I think that would be a weasely way around what I said on SongBuddy, and I’m not going to work around my statements on a technicality.

  3. I was kind of wondering whether you where really going to go through with that. At least they where civil in there letter; it looks like they are holding off threatening scorched earth until after you do something…
    In lieu of the offering mp3’s of the Grey album, maybe we should get people together at a Coney island, eat chili dogs, and burn copies of the album with a few laptops?

  4. Island says:

    Hi George:
    It seems to me that the lawyer is in a quandry as what to do. While it is true that EMI own the rights to The Beatles’s ‘White Album’, they do not own the rights to DJ Danger Mouse’s ‘The Grey Album’, which in itself is an entirely new creation. Regardless of the elements contained within The Grey Album, it is its own creation. Cease and desist notification is a tool to intimidate, nothing more and nothing less. The e-mail you received, however, is no such thing.
    Your concerns are reasonable, and your reasons for reconsidering your positon in regards to Grey Tuesday understandable. However, given the power that you have with regards to your own website it would seem that you have a propensity to abuse all who visit your site with verbiage that you neither a) feel deeply, or b) have deeply considered, or c) or both. If your position on matters of copyright were well thought out you wouldn’t have proposed to participate on Grey Tuesday in the first place, or you would still continue to be a supporter of Grey Tuesday. I only say this because EMI’s and the RIAA’s position on copyright is well thought out — they want to control the phenomenon of the creation of music fully. It is the value that you place on music that the parasites they are, prey upon. Because you love music, they place monetary value on that.
    The truth is that denial of creative works make as much sense as the approval of creative works by such institutions. By denying access to that which has intrinsic value, which is the music, they create more monetary value for the music. This one of the most well documented laments of many artists in the music industry, because being artists they need to create as much as they need to, but the RIAA’s institutions place a limit on not only how much they can create in a certain amount of time, but also as to what it is that they can in fact create. In short they seek to control your perception of what music is, and how valuable it is to you. If they can control your sense of value, then it follows that they can sell you anything. That is the theory.
    DJ Danger Mouse’s method of creation, that is literally taken what has been done and refashioning it, is a threat to the way that record companies do business. Because of that, lawsuits are used to stem the threat of this type of behavior before it becomes common practice in the mainstream. It is already common practice, but only in what is known as the underground.
    The Beatles have rights and entitlements, there is no question to that. However, I and others are waiting to be convinced that once a creative work of any kind is released to the public, that it is still at the same time privately owned. This clearly is not true. Once the content of a creative work makes its way to your brain, then that content is no longer retrieveable in it’s original form. You, the audience, now own that work in an entirely individual and unique way. That is the reason for the invention of, and function of compensation for original creative work. These conventions are applied to recorded creative works because they are immediately identifiable as being the original work, or not. And the purpose of lawyers is to assure compensation. Mostly, if not entirely, for themselves.
    Laws that could solve these conflicts have yet to be written, and if left up solely to lawyers they will never be. After all it is lawyers, and not record people, that run what is known as the music business. So at the very least, clearly define where you stand. You have, after all, a public forum and clarity makes it easier for us to count on, or not count on you for certain things.

  5. KissaBoo says:

    Grey Matter

    I was surprised to learn that some readers of this site have not yet heard of the Grey Album. Search around (and perhaps post here) other sites that have a better description of the issues involving this work, but I learned from reading 90% Crud that t…

  6. George says:

    Island, it sounds like you’re accusing a weblogger of posting hastily. That’s along the lines of accusing a pancake of flatness; it’s a defining characteristic of the weblog voice 🙂 If I were forced to take your multiple choice test I would fall deeply in camp B – abusing all who visit my site with verbiage that I have not deeply considered. Such is the nature of the personal weblog, although if I were in the market for an editor you would be on the short list.
    I believe that SongBuddy can affect long-term change in the way digital music is handled. When forced to choose between the integrity of SongBuddy and participation in Grey Tuesday I have to choose which I believe will do more good. I believe that enough people will participate in Grey Tuesday that my lack of participation will have a negligible effect and that my participation in SongBuddy will have a significant effect. Given that, the choice is obvious to me.
    In the past I had a certain freedom of action in this sphere (not to beat a dead one trick pony, but see the whole iTunes/eBay thing) but suddenly I’m also responsible for the health and well-being of SongBuddy. It’ll take a while for that to become a part of who I am, and so I’ll make mistakes like this along the way.
    I won’t comment on your thoughts on digital music for a couple reasons. The first is that I agree with them for the most part and have little to add. The second is that it appears that you have considered these issues far more than I, which is a bit intimidating. I don’t make any claims here as to my expertise on anything, I’m simply putting up here what I’m thinking and feeling about various topics.
    I am flattered though, that someone with such deep insights into these issues is reading and contributing to my site. Thank you.

  7. Grey Album

    Quite a bit had been made on a few blogs over the grey album, including George H.’s site, and I feel I have a public duty to point people towards this post on While I can’t host the mp3’s…

  8. Grey Tuesday is tomorrow

    Tomorrow is Grey Tuesday. Hundreds of websites, including this one, will be turning grey, and many, as this one already does, will offer DJ Danger Mouse’s banned “Grey Album” as an MP3 download. (Summary and links here.) Naturally, EMI Music…

  9. KissaBoo says:

    Grey Matter

    I was surprised to learn that some readers of this site have not yet heard of the Grey Album. Search around (and perhaps post here) other sites that have a better description of the issues involving this work, but I learned from reading 90% Crud that t…

  10. eleanor says:

    I certainly respect your decision to refer your readers to Grey Tuesday rather than risk legal troubles with Capital/EMI that I’m sure you cannot afford. While commenting on this protest this morning, from the point of view of a visual and music artist who has grappled with the concepts of free expression and fair use for a long time, I felt obligated to do the opposite, and decided to throw those tracks online for anyone to sample (not that anyone reads my little nascent blog). Get ’em today here if you’d like (or of course, any of the many sites listed at I think what is really the issue here is not whether artists such as Dangermouse or Negativeland have a right to sample but whether or not rock and rap music is art. I have come to believe that the argument about whether sampling and riffing on the work of others is an art or a crime is really one of prejudice. Appropriation is essential to art and its role in popular music history should not be denied either.

  11. Jeff Free says:


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