Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
Ernest Miller's blog postings can also be found @ Copyfight LawMeme
Feel free to contact me about articles, websites and etc. you think I may find of interest. I'm also available for consulting work and speaking engagements. Email: ernest.miller 8T gmail.com
The issues here are not entirely clearcut. However, it seems to me that EMI deserves to be ridiculed for its continued support of over extented copyright.
1. Cypherpunk on February 24, 2004 11:05 PM writes...
Ridiculing EMI's support for over-extended copyright ought to involve an issue where copyright has been over-extended. The white album was published in 1968, not exactly an eternity ago.
I'm surprised that you have followed the crowd on this issue instead of speaking up to defend the rights of copyright owners to seek legal redress when infringement occurs, as you have done with the file sharing lawsuits.
Once again I see what looks like mindless groupthink among the online community. Or more ominously, I sense a growing social norm against supporting even justifiable actions on the part of record companies, and writers like yourself are too fearful to violate these norms. I hope that's not the case, but honestly I don't understand why someone like you would sign on to this cause and display the logo when it seems to be plainly contrary to the principles you have supported in the past.
1968 was 35 years ago, 7 more years than the original copyright term of 14+14 years - something that is certainly worthy of debate. Furthermore there are grey areas here with regard to what fair use should permit. I'm not about to say all the issues are simple, but I will oppose copyright maximalists.
3. Cypherpunk on February 25, 2004 12:02 AM writes...
Okay, then, I apologize for insinuating that you were scared to buck the crowd. 28 years vs 35... if that's copyright maximalism to you, so be it.
Anyway, here is a good article by Andrew Raff analyzing the legal issues, including whether this could be considered fair use, http://www.iptablog.org/2004/02/20/white_black_and_grey.html#more .
Your sarcasm is duly noted. But do you think that EMI really cares that it has been 35 years since the White Album was released? Wouldn't they be doing the same thing if the White Album had been released 75 years ago?
Is EMI granting even an inch on fair use? According to them, every element of the album is copyright infringement, no ifs ands or buts. This is clearly not the case.
Finally, EMI could be working to enhance creativity without harming their business interests, such as the annotation or recipe concept that I posted on a few days ago. But they are making no such effort and will get little sympathy for me.
In any case, it is clear that I don't fully endorse Grey Tuesday, but do think it an issue that should be debated. This is following the crowd? I've always done my best to adhere to my beliefs on the subject, beliefs that do not correspond with most of the major players. My disagreements with EFF, Fisher, et al. have been quite public and my positions consistent (in my view at least).
this is about controlling what cannot be controlled... unusual creativity. It doesn't matter what level of control is realized over an important cultural artifact such as this, if it is good enough and compelling enough, it will not be controlable.
One obvious issue that seems to have been left out of the debate over the Grey Album is that it was a commercial effort. Here we have a DJ who knowingly mixed in samples that he knew he couldn't license, and made a clearly commercial work.
Do you really think that this would have played out any differently if the White Album had been released 12 years ago?
I think that twelve years from now, if the music industry gets its act together, the question will be moot because you will have "recipe" mixes distributed freely.
Such "recipe" remixes could make for sly concoctions, but that doesn't really address the issue at hand, which is that this DJ mixed in samples without a license, and with commercial intent.
I just don't buy the argument that the Grey Tuesday response is simply about copyright term.
Currently artists have a right to decide when their work might be used within another, and they have the right to negotiate terms.
For example, if the Beatles had retained their control, they might choose not to license "Happiness is a Warm Gun" for use by the NRA.
Grey Tuesday seemingly sets out to take that right away, in exchange for Yet Another Hypothetical Compulsory.
My apologies, it seemed you raised the term issue above.
In any case, the Grey Tuesday issue is not about Big Bad Record companies, it's about whether an independent artist should retain the right to decide when their work can be commercially sampled by another, and whether she can negotiate her own terms.
Or instead, whether that right should be taken away to make it easier to produce more art of this audio-collage kind.
I did raise the issue of term limits, but only in the context of pointing out that my main beef is with the major record labels failure to foster creativity rather than stomp it out. I was not making an argument that the Grey Album is fully in the right. I think the original quote I had was "The issues here are not entirely clearcut. However, it seems to me that EMI deserves to be ridiculed for its continued support of over extented copyright."
Right now, during my limited free time, I've been spending more time considering the issue of gay marriage and did not want to do a full-blown post on the rights and wrongs of the Grey Album. I did note in an earlier post that a "recipe" mix would not violate copyright and would be a benefit. Note that I did not justify the Grey Album as is. The Grey Album actually is a fairly difficult case, there are complicated issues of fair use involved.
In the end, I like the Grey Album's creativity. We should work towards a copyright regime that would foster such creativity while ensuring that artists are compensated. The "recipe" concept would do that. EMI, however, is not interested in fostering creativity, but in stifling it. While DJ Dangermouse may not be entirely in the wrong, he is a single individual. EMI is part of a corporate behemoth.
Should I complain about the mote in DJ Dangermouse's eye, or the beam in EMI's?
I gave a listen to the Grey Album, and even though the idea is fun, I thought it was a pretty mediocre listen. I doubt it would have gotten such glowing praise had it not been for the controversy.
But I don't mean to distract from the gay marriage discussion. Personally, all this exclusionary crap makes me and Amy less inclined to get married. It just seems mean-spirited to me, and I don't buy in.
Two people want to be committed to each other? Good for them, and good for us, I say.
Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
Ernest Miller's blog postings can also be found @
1. Cypherpunk on February 24, 2004 11:05 PM writes...
Ridiculing EMI's support for over-extended copyright ought to involve an issue where copyright has been over-extended. The white album was published in 1968, not exactly an eternity ago.
I'm surprised that you have followed the crowd on this issue instead of speaking up to defend the rights of copyright owners to seek legal redress when infringement occurs, as you have done with the file sharing lawsuits.
Once again I see what looks like mindless groupthink among the online community. Or more ominously, I sense a growing social norm against supporting even justifiable actions on the part of record companies, and writers like yourself are too fearful to violate these norms. I hope that's not the case, but honestly I don't understand why someone like you would sign on to this cause and display the logo when it seems to be plainly contrary to the principles you have supported in the past.
Permalink to Comment2. Ernest Miller on February 24, 2004 11:12 PM writes...
1968 was 35 years ago, 7 more years than the original copyright term of 14+14 years - something that is certainly worthy of debate. Furthermore there are grey areas here with regard to what fair use should permit. I'm not about to say all the issues are simple, but I will oppose copyright maximalists.
Permalink to Comment3. Cypherpunk on February 25, 2004 12:02 AM writes...
Okay, then, I apologize for insinuating that you were scared to buck the crowd. 28 years vs 35... if that's copyright maximalism to you, so be it.
Anyway, here is a good article by Andrew Raff analyzing the legal issues, including whether this could be considered fair use, http://www.iptablog.org/2004/02/20/white_black_and_grey.html#more .
Permalink to Comment4. Ernest Miller on February 25, 2004 12:41 AM writes...
Your sarcasm is duly noted. But do you think that EMI really cares that it has been 35 years since the White Album was released? Wouldn't they be doing the same thing if the White Album had been released 75 years ago?
Is EMI granting even an inch on fair use? According to them, every element of the album is copyright infringement, no ifs ands or buts. This is clearly not the case.
Finally, EMI could be working to enhance creativity without harming their business interests, such as the annotation or recipe concept that I posted on a few days ago. But they are making no such effort and will get little sympathy for me.
In any case, it is clear that I don't fully endorse Grey Tuesday, but do think it an issue that should be debated. This is following the crowd? I've always done my best to adhere to my beliefs on the subject, beliefs that do not correspond with most of the major players. My disagreements with EFF, Fisher, et al. have been quite public and my positions consistent (in my view at least).
Permalink to Comment5. joe on February 25, 2004 03:49 AM writes...
this is about controlling what cannot be controlled... unusual creativity. It doesn't matter what level of control is realized over an important cultural artifact such as this, if it is good enough and compelling enough, it will not be controlable.
Permalink to Comment6. Scott Matthews on February 25, 2004 01:52 PM writes...
Hi Ernie,
One obvious issue that seems to have been left out of the debate over the Grey Album is that it was a commercial effort. Here we have a DJ who knowingly mixed in samples that he knew he couldn't license, and made a clearly commercial work.
Do you really think that this would have played out any differently if the White Album had been released 12 years ago?
-Scott
Permalink to Comment7. Ernest Miller on February 25, 2004 05:10 PM writes...
I think that twelve years from now, if the music industry gets its act together, the question will be moot because you will have "recipe" mixes distributed freely.
Permalink to Comment8. Scott Matthews on February 25, 2004 05:52 PM writes...
Such "recipe" remixes could make for sly concoctions, but that doesn't really address the issue at hand, which is that this DJ mixed in samples without a license, and with commercial intent.
I just don't buy the argument that the Grey Tuesday response is simply about copyright term.
Currently artists have a right to decide when their work might be used within another, and they have the right to negotiate terms.
For example, if the Beatles had retained their control, they might choose not to license "Happiness is a Warm Gun" for use by the NRA.
Grey Tuesday seemingly sets out to take that right away, in exchange for Yet Another Hypothetical Compulsory.
-Scott
Permalink to Comment9. Ernest Miller on February 25, 2004 05:57 PM writes...
I never said that the Grey Tuesday issue was simply about copyright terms.
Permalink to Comment10. Scott Matthews on February 25, 2004 06:31 PM writes...
My apologies, it seemed you raised the term issue above.
In any case, the Grey Tuesday issue is not about Big Bad Record companies, it's about whether an independent artist should retain the right to decide when their work can be commercially sampled by another, and whether she can negotiate her own terms.
Or instead, whether that right should be taken away to make it easier to produce more art of this audio-collage kind.
-Scott
Permalink to Comment11. Ernest Miller on February 25, 2004 06:39 PM writes...
I did raise the issue of term limits, but only in the context of pointing out that my main beef is with the major record labels failure to foster creativity rather than stomp it out. I was not making an argument that the Grey Album is fully in the right. I think the original quote I had was "The issues here are not entirely clearcut. However, it seems to me that EMI deserves to be ridiculed for its continued support of over extented copyright."
Right now, during my limited free time, I've been spending more time considering the issue of gay marriage and did not want to do a full-blown post on the rights and wrongs of the Grey Album. I did note in an earlier post that a "recipe" mix would not violate copyright and would be a benefit. Note that I did not justify the Grey Album as is. The Grey Album actually is a fairly difficult case, there are complicated issues of fair use involved.
In the end, I like the Grey Album's creativity. We should work towards a copyright regime that would foster such creativity while ensuring that artists are compensated. The "recipe" concept would do that. EMI, however, is not interested in fostering creativity, but in stifling it. While DJ Dangermouse may not be entirely in the wrong, he is a single individual. EMI is part of a corporate behemoth.
Should I complain about the mote in DJ Dangermouse's eye, or the beam in EMI's?
Permalink to Comment12. Scott Matthews on February 25, 2004 07:44 PM writes...
I gave a listen to the Grey Album, and even though the idea is fun, I thought it was a pretty mediocre listen. I doubt it would have gotten such glowing praise had it not been for the controversy.
But I don't mean to distract from the gay marriage discussion. Personally, all this exclusionary crap makes me and Amy less inclined to get married. It just seems mean-spirited to me, and I don't buy in.
Two people want to be committed to each other? Good for them, and good for us, I say.
-Scott
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