Black + white = The Grey Album DJ Danger Mouse combines Jay-Z and the Beatles and starts a legal firestorm BY CARLY CARIOLI

A week ago Tuesday, despite the threat of legal action, some 170 Web sites offered for download DJ Danger Mouse’s The Grey Album — an amalgam of the vocals from every song on Jay-Z’s The Black Album (Roc-A-Fella) remixed with music taken entirely from The Beatles (Capitol), a/k/a "The White Album." At least 400 more Web sites were shaded gray as a sign of solidarity. "Grey Tuesday," as it was called, was characterized by its organizers as an act of coordinated civil disobedience against the restrictive nature of copyright laws. EMI, which publishes the Beatles’ catalogue, called it "a serious violation of Capitol’s rights," and cease-and-desist notices arrived on the doorsteps of the participating sites on February 23. Downhillbattle.com, the Worcester-based Web site that organized the protest, estimates that 100,000 copies of The Grey Album were distributed on Grey Tuesday alone — which likely made the "disc," if only for a day, the #1 release in the country.

Worcester’s Holmes Wilson and Nicholas Reville founded downhillbattle.com last August as one of a growing number of Web sites devoted to toppling the five major labels’ grip on the music industry. The pair come from a background of global-justice activism — while a student at Brown University in 2000, Reville helped organize a collegiate sweatshop-monitoring consortium — and their criticism of music-industry practices is colored by a broader critique of corporate culture. The site offers T-shirts that read "Peer-to-Peer Kills Pay-to-Play" — a reference to the industry’s stated claim that downloading hurts record sales, and to the claim that the labels continue to monopolize radio airplay through payola — as well as stickers meant to be placed on major-label titles that read: "WARNING: Buying this CD funds lawsuits against children and families."

Wilson is a Jay-Z fan, and in January, a friend e-mailed him about a spate of unauthorized remixes of The Black Album that had been circulating on the Web. Hip-hop and dance artists have long issued a cappella versions (often as B-sides) in order to encourage DJs to remix their singles. In the past, Roc-A-Fella had made a point of not releasing its material a cappella, but The Black Album is being marketed as Jay-Z’s swan song, and the release of the two-LP a cappella was widely seen as a parting gift to rap fans and producers. Although at least a dozen Black Album remixes would eventually flood the market, The Grey Album distinguished itself from the pack. In a matter of weeks, it jumped from an underground Web-only phenomenon — a disc lauded by hip-hop bloggers, traded on file-sharing networks, and available from a select few on-line DJ specialty shops — to a mainstream sensation, with press coverage on MTV, in the New York Times, and in the New Yorker. "It’s not just a mash-up," says Wilson. "He’s really getting deep with pulling apart the sounds [of "The ‘White Album"]. It’s a crystal-clear example of an album for people who are suspicious of sampling to grasp what’s valuable about this new form."

Sampling isn’t exactly new, but Holmes and Reville are relative newcomers to copyright law, and the two can sound a little naive. Their thinking on the issue is heavily influenced by the writings of Stanford Law School professor Lawrence Lessig and what Robert S. Boynton in the January 25 New York Times Magazine referred to a couple months ago as the "Copy Left" — a group of intellectuals and activists who argue that the recently tightened copyright law will have far-reaching effects on free speech, creativity, and commerce. "In less than a decade," Boynton wrote, the "liberating potential of the Internet seems to have given way to something of an intellectual land grab presided over by legislators and lawyers for the media industries."

People in the music industry would "rather keep the focus on their stars and the focus off the way the business works," says Holmes. "But file sharing has pulled them out of the shadows."

On the surface, The Grey Album seems a poor launching pad for a copyright crusade. The allowance in copyright law for fair-use provisions makes for many gray areas. But unlike Negativland, the avant-garde group who landed in court over "U2," their 1991 sound-collage appropriation of "I Still Haven’t Found What I’m Looking For," Danger Mouse does not claim any fair-use protection. Although he admitted to pressing about 3000 "promotional" copies of the disc, The Grey Album was intended to be a limited-edition collector’s item, not unlike countless other white-label releases that proliferate on-line and trickle into such DJ-boutique specialty shops as hiphopsite.com, fatbeats.com, and turntablelab.com. "That’s one of the things I struggled with," he told the New Yorker. "I told myself, ‘Never will this come out.’ " Last month, when EMI ordered him to cease and desist from distributing The Grey Album (the action that prompted downhillbattle.com to take up the cause), the artist humbly complied.

Still, the disc has become a flash point for file sharing and copyright activists such as illegal-art.org. One of the first sites to offer The Grey Album for download, it cited the disc as an example of "what is rapidly becoming the ‘degenerate art’ of a corporate age: art and ideas on the legal fringes of intellectual property." And downhillbattle.com is arguing a fair-use exemption for Grey Tuesday. "If we get taken to court," says Wilson, "I’m going to get up and say that copyright is not created by corporations to protect their interests: it’s created by the public. And for the public to make informed decisions about copyright law, people need to hear the stuff the current system suppresses. If you can’t hear it, then you don’t know what we’re missing."

"Anyone who is claiming that this is fair use obviously does not have a grasp of the copyright statute and probably hasn’t read it," responds EMI spokesperson Jeanne Meyer, though she declined to say whether EMI will pursue further legal action. Meanwhile, hinting at the enormous complexity of copyright law, the Electronic Frontier Foundation, a digital-rights advocacy group, suggested in a recent post on its Web site that EMI might be forced to take the case to state courts, arguing that no federal copyright protection exists for recordings made prior to 1972. "The White Album" was released in 1968.