We had a compelling discussion in Tuesday’s Music Biz Coaching Gym conference call about the Grey Tuesday protest.

Quick catchup: Jay-Z releases mix-minus tracks to his fans to encourage underground remixing of The Black Album. DJ Danger Mouse gets an amazingly clever idea to mix the vocals with beats from the Beatles’ White Album. 3,000 “promo only” copies get whipped up and sent to hipsters, writers and other music cognoscenti. Sure ’nuff, some of them end up on eBay. And like Batman and Robin blasting out of the Batcave, EMI’s lawyers issue cease and desist orders.

Here’s where the fans took things into their own hands. To protest EMI’s copyright squelch, hundreds of websites post the MP3 tracks for free distribution. The faster EMI sends out C&D notes, the faster the list of sites grows.

Whether intended or not, this is the indie guerilla marketing coup of the past five years. DM has a legit record on store shelves. In my opinion, it’s a better listen than what’s on the Grey Album. (Although “December 4th” is an incredible, artistic soundscape.) Few people knew who DM was on Monday morning. By Friday, he’ll have been mentioned numerous times on CNN and, I would bet, have been approached for live appearances on any number of late night shows.

I’ve always thought that it’s both business and professional courtesy (and, as Larry Lessig reminds us, it’s the law!) to request permission for sample clearances before mixing them into your new tracks. Although the group on yesterday’s call agreed with me, in principle, we also noted that any band with a lot to gain from being sampled would be a fool to say no either before or after the fact.

The fact that EMI sees little upside in this arrangement gives them the luxury to say ‘no.’ And, at the very least, DM had the sense to frame up his album as an “art piece,” with no money changing hands, so it’s clear he’s not trying to exploit the work for financial gain. (Although that’s another unintended result.) Had one penny changed hands, he would clearly have been in the wrong and there is a stack of precendent to support that.

If EMI wants this problem to go away, the best thing they can do right now is sign a deal with DM and release the Grey Album themselves. Plenty of folks would be happy to buy it. It would probably recoup in about an afternoon. EMI may need the income to pay for all those C&D letters.

[via Nothing is True, Adam Kessel, Delirious Cool and dozens of others.]

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