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your unauthorized use of its intellectual property,Discovery may have trouble preventingfuture egregious infringements by competitorsand persons intending to trade off the goodwillof Discovery.” 175 We categorized this probablefan site as having a reasonable fair use defensebecause the copied material was accompaniedby commentary.• Another fan site, for the TV show Carolinein the City, included transcripts from the show’sepisodes, plot summaries, and fan fiction.The operator received a cease and desist letterfrom CBS-TV in January 2004, claimingboth copyright and trademark infringement.Although the letter noted that “you may nothave been aware of the applicable laws,” andsaid CBS was “quite happy to know” thatCaroline in the City had loyal fans, it threatenedlegal action if the material was not removed.The letter went on: “please understand thatit doesn’t bring us any pleasure to send legalletters to our fans.” 176We thought the site had a reasonable fair usedefense because its transcripts and summarieswere posted in the context of commentary,were not for profit, and were more likely toincrease than interfere with the market for theTV show. 177 However, the owner removed thetranscripts and fan fiction, explaining that shehad received a cease and desist letter. This resultedin an outcry from fans, and a few months later, anew owner re-posted summaries of episodes, butnot the transcripts. She wrote: “woo, I got rid ofthat depressing letter Ann posted a few monthsago. And if you look closely on the left, you’rein for a little surprise: The dearly missed sectionis back!!” There was also a disclaimer explainingthat the site is nonprofit and has no connectionwith the producers of the show. 178• Seven letters from Capitol Records/EMI inFebruary 2004 warned against any distributionof DJ Danger Mouse’s Grey Album, a “mash-up”using the rapper Jay Z’s then-recently releasedBlack Album mixed with songs such as “Julia,”“Happiness is a Warm Gun,” and “RockyRaccoon” from the Beatles’s 1968 White Album.Hundreds of Web sites had announced thatthey would post the album on “Grey Tuesday,”February 24, 2004, as a gesture of protest againsta copyright system that fails to acknowledgethe importance of mixing and sampling tomusical creation. The letters demanded notonly that The Grey Album not be distributedbut that recipients identify “any third parties”who had supplied them with copies, providean accounting “of all units of The Grey Albumthat have been distributed via your website,” and“make payment to Capitol in an amount to bediscussed.” 179Danger Mouse himself, Brian Burton,had agreed to Capitol’s demands, and so didsome recipients of the threatening letters.But DownhillBattle.org, coordinator of GreyTuesday, reported that “for 24 hours, over170 sites made the album available in protest,defying legal threats.” 180 To the letter from EMIthat Downhill Battle itself received, the groupresponded that “your efforts to suppress musicstifle creativity and harm the public i nterest;we will not be intimidated into backing down.Downhill Battle has a fair-use right to post thismusic under current copyright law and thepublic has a fair-use right to hear it.” 181The Electronic Frontier Foundation (EFF)posted a legal memo that bolstered the protesters’claim to a fair use defense. Distribution of TheGrey Album, EFF said, was for a noncommercialpurpose; downloads would not “substitute forpurchases of The White Album or other recordingsof the Lennon-McCartney songs on the album”;The Grey Album was “a transformative use of TheWhite Album, not a wholesale copy”; and thepostings were intended as “a commentary onthe use of copyright law to stymie new kinds ofmusical creativity.” 182 Although some copyrightexperts might consider EFF’s analysis to be astretch for fair use, certainly The Grey Album wasa creative and transformative use of the Beatles’material – a major factor in fair use cases.Summary and ConclusionsThe chart below summarizes the impact ofthe 153 letters in the Chilling Effects databasefor 2004 that either targeted material with a fairuse/First Amendment defense or that stated aweak IP claim.These numbers indicate, not surprisingly,that the stronger the claim to fair use or otherBrennan Center for Justice 35