Second U-E cease and desist letter (new topic)

[littlefred]

Wikipedia is an interesting example - it is recognized there that items may be public domain in some countries but not others. To quote from their public domain page (http://en.wikipedia.org/wiki/Wikipedia:Public_domain) " "there is no such thing as the public domain on the Internet. " It's a very instructive page.

It's worth bearing in mind that their servers are in Florida so they take special care to follow U.S. copyright law and also pay attention to the Berne Convention. In cases where something is P.D. in one country but not in others (especially within the Berne Convention) then generally it is not considered "sufficiently public domain" for Wikipedia. An interesting case is the pre-1923 rule. Anything published anywhere in the world before 1923, regardless of when the creator died, is P.D. in the U.S. but may well be copyright elsewhere under "life + 50 years" or "life + 70 years" rules. If Wikipedia was in the business of "maximising the availability of public domain material" (i.e. "getting away with as much as possible") the community there might choose to allow any pre-1923 publication, since it would be out of copyright within the U.S. where the Wikipedia servers are located. However, Wikipedia policy is not to try to get away with as much as possible, rather it restricts the use of the pre-1923 rule to publications published within the U.S. and generally enforces "life + 70" to publications outside the U.S. with a few exceptions. "Life + 50" suffices for Canada, but this is only used for works that originate in Canada, not were merely republished there. The basic idea is for the work to be P.D. both in the U.S. where the servers are, and also in the place where the work originated.

As has already been discussed, the situation with sheet music is complicated because the original composer, any subsequent arranger, the setting for a publication and possibly even the editing for certain editions may all have intellectual property implications. But IMSLP had an excellent system for copyright monitoring. The hard work has already been done sorting through the music and putting on appropriate copyright tags.

The strength of that system is that now it would not be technically impossible to implement either of the two obvious solutions - the universal application of the "strictest" copyright rules would be easy or the finer approach country-by-country IP block (identifying which countries something is allowed would not be hard to work out from the copyright tags - admittedly you might not know the law of Mali, but unless Malian lawyers write to you, I wouldn't worry about it; the major internet audiences of the US, EU, Australia/NZ, Canada, Japan and South Korea are all relatively easy cases).

Now, I for one hate the "life + 70" term, I think it's ridiculously restrictive. But you can see there's a problem if a work composed by a German, published first in Germany, and still copyright in Germany, can be accessed by a German in Germany using the IMSLP - it doesn't have to printed, the mere appearance of the work on the screen is technically an instance of "publication". At this point you can understand why the copyright holder might start to take a (legitimate) interest. (Not saying that I approve in any way of the heavy-handed approach they took, but it's clear that IMSLP was leaving itself open to legal scrutiny.)

Even Wikipedia doesn't try to get away with all it could. Wikipedia's copyright policies are self-regulated, and many disputes arise over low quality reproductions of works created long ago by obscure photographers/artists/designers/musicians and which are pretty clearly of no commercial value, with scant chance of being reprinted. IMSLP is treading on hotter coals already - even the works it publishes (and legally this is what it's doing) high quality digital reproductions of and which are P.D. worldwide are often being reprinted for profit by other organisations; those works only P.D. in certain jurisdictions may not be the hottest of properties but they do still make money for their copyright holders. Basically the "get away with as much as possible" model is bound to get the legal eagles involved. Bearing this in mind, a more conservative approach to declaring work "public domain" seems sensible.

Wikipedia might provide an example of a "third way", less draconian than imposing the strictest possible interpretation of P.D. but less technically difficult than the case-wise IP block. What about trying to respect the law for where the material is sourced from, and the law where the servers are? The work, first published in Canada/South Korea, of a Canadian/South Korean composer could benefit from the more relaxed "life + 50" rule, if it's a German composer published first in Germany then play it safe with "life + 70". It might not be 100% legally watertight - perhaps the holder to the rights in Germany of the South Korean composer will kick up a fuss - but such problems seem unlikely (and can always be responded to by pulling the appropriate content) and it would be a lot determining the copyright status in one or two countries rather than all 190-ish. In a sense, it's unfortunate that IMSLP happened to be based in Canada and therefore tempted fate more by applying Canada's unusually "liberal" copyright laws (I think life+50 is still pretty tight really, but unfortunately it compares well internationally) - had the site been created by an American or German then odds are this problem wouldn't have arisen because those harsher laws would have seemed more natural and almost certainly been complied with. (This is in no way a personal criticism, just a reflection of the laws of chance - the U.S. has 301 million people, the E.U. 490 million, and Canada only 33 million, but in this case the 4% chance of being Canadian actually occurred!)

Any added conservatism on declaring works "sufficiently" P.D. will result in the loss of some material (although if the IP blocking system was implemented, it'd only apply to appropriate users and not to the central library itself). It's worth bearing in mind that the copyright laws that U-E wanted applied probably affect the vast majority of users (not just a small minority) but only the minority of IMSLP material. Unlike some other posters here, I don't think that preventing users from downloading works illegally (in their jurisdiction at least) would either devastate functionality or make all U.S. users incredibly unhappy, unless the font of happiness and productivity is the performance of illegal acts. Moreover, that attitude significantly undervalues the amazing work done at IMSLP, in the uploading, cataloguing, and careful copyright identifying of thousands of (often rare) manuscripts which are undoubtedly copyright-free worldwide. That work is incredibly valuable and easily outweighs the value of the copyright-disputed material. There's no need to feel guilty about the copyrighted material, since it was uploaded in good faith and with a careful eye on Canadian law, but whether it's worth a legal wrangle over isn't a question for me to judge. But I do think it's worth pointing out (1) that there are lower-risk strategies for publishing material on the web that would substantially reduce the chances of legal problems, and (2) that the disputed material only ever happened to be on here in the first place due to the less than 5% chance of the creator being Canadian. I don't want to sound like I'm either siding with the bullies, or sticking up for absurd copyright terms, but I do think there's so much incredibly valuable work at IMSLP that is absolutely unaffected by modern copyright law that it would be a great shame if it was lost due to some dumb legal dispute...

As a previous "happy customer" of this site I would like to thank all who've worked on it, particularly the creator, and I really hope that some solution can be found!

[Blouis79]

But without a working page to view, I can't offer much help. Is there another site with a similar layout that I could disassemble?

Try the internet archive:
http://www.archive.org/index.php
specifically, the wayback machine

[jhellingman]

Thanks for the long discussion, littlefred. However, I think Wikipedia's guidelines are way too restrictive. They work from the longest copyright term (Mexico's shameful life+100), and don't allow you to upload anything newer as public domain. Maybe they try to be helpful to users, and protect them from accidently re-using restricted materials in their country, but I feel that Wikipedia gets it wrong: they should follow US law only, and just put up some general explanation on the site. Why follow one type of censorship (under the guise of copyright) but shout loud against another type, such as prevalent in totalitarian states such as China, Saudi Arabia or Iran.

[blbmail]

I totally agree with Peter idea, as i discovered yesterday the situation.

I only used a few time the site for making my children discover new music we should probably never know in an other way. Of course it doesn't prevent me to buy real binded score books when i have to play often some pieces !

I was absolutly impressed and delighted by the site and convinced that it is a great public initiative.

I would be happy to contribute to any action to bring back to life the site using Peter suggestions (and perhaps in a more anonymous version, with a server in an other country ?)

Thank you so much Feldmahler for what you have done. When you will be in a better mood please let us know what we could do to help you or to find a way to bring a legacy to your great work.

With all my best regards.

Bernard - Paris - France.

I try to understand, but it's hard.
In case of a restart of the site - which is the only logical outcome of this catastrophe - a dump will be absolutely needed. I couldn't just imagine redoing all the work that there is spent in the last two years - including the submission and evaluation of 15,000 files. IMSLP, all the work devoted to it, all the contributors and all the visitors, all the public domain scores, cannot be punished for a fraction of the website that would be infringing copyright. A definitive take-down of the entire site was NOT the purpose of the Cease & Desist letter and is a WRONG and even ridiculous solution. WE CAN'T LET THIS HAPPEN.

I think there are only two options:

1. restart, but with stricter copyright laws - taking for example 70 y post mortem and pre-1923 as the only rules accepted - to prevent any further action. I suppose this would keep 75% of IMSLP on-line? The existing archive (image server dump!?) can be trimmed to the new boundaries and everything should be back on track. We could even only delete the very limited number of UE's publications that are subject to the cease & desist. On longer term, there might be even time to work out an IP-based access restriction and add other scores that are in your backup disk.
Feldmahler, I think this would be the best solution with the least effort, as deletion of certain autotagged works is really an easy job. This could be a temporary solution, where no legal doubtfulness is involved. The copyright review team will be well aware of the new restrictions.

2. do not bend and let come the lawsuit. let us all pay our 50 cents (or a lot more probably) to Feld. start a petition. find support of open-source organisations. ask bill gates or al gore for his support.

The more I think about it, the more I don't understand why you didn't opt for the first solution?

[mastro1]

I have followed the discussions about the problems and future of IMSLP very carefully (the last, thoughtful post by Peter).

Let me say from the beginning that I understand all the points made thus far about the copyright situation. I share many of the views myself but an amazed that so many people seem to be:

= Wishing that all the world were free

= Wanting the whole world to work under Canada’s copyright law.

= Wanting to punish the publishing industry for real or imagined wrongs

= Willing to punish themselves and all the other past and future IMSLP users to make whatever philosophical point they are purveying.

The facts are, dear people:

= The whole world isn’t free. However, massive parts of it (the great majority of masterworks that sit in uncontested public domain) is free. So, why throw all that away for the sake of a small percentage of works under copyright … no matter in which country they are copyrighted?

= Wishing the whole word were under Canada’s copyright laws – even though the host site may be in Canada, the act of placing works on the Internet is an International act. By making a work, no matter how legal in one’s own country, downloadable in a country where it is still in copyright means that the act does facilitate the breaking of that copyright. Wishing it were not so does not abrogate the legal reality.

= Punishing UE (and by proxy, all publishers)? All of us practicing musicians have our personal horror stories to tell about publishing abuses/excesses. However, the vast majority of the time I am treated fairly (yes, even by UE) and that allows my programming to venture into copyright works. I am not willing to forgo, say the opportunity to do Copland’s Appalachian Spring because I don’t like the business practices of its publisher. It is a part of reality that those works are under copyright and I must function within the system in order to enjoy them.

What is so difficult about removing the works in question from the site and bringing it back up? The good that the site was doing far outweighs any philosophical point, no matter how dear to the holder.

= Why punish ourselves? At my University, in the mere 3 weeks between my discovery of the site and its cessation, ISLP was a wellspring of creative thought for my students. We actually sat in an advanced analysis class consulting scores on the site whenever questions arose. We were able to print out only those movements of the Nutcracker Suite that we wished to perform. A student was able to quickly compare motive use from Beethoven developments because she had access to the scores, scores that are not necessarily in our library. When I look forward to teaching my orchestration course next year, I salivate at the idea that I could possible bring scores up on the media system in the classroom as questions occur. And, the potential legal uses go on and on. What a resource that you all provided!

I full well understand that the noble originator of the site is overworked and perhaps even burnt out with the creation he fathered. So, let’s endeavor to bring the site back, remove the copyright questions (from UE or any other publisher with a legitimate concern) and figure out a way to collectively help the originator maintain this massive project.

The IMSLP resource is TOO valuable to lose.

Yours,

Maestro1
Prof. of Music
Drew University

[jhellingman]

Wishing the whole word were under Canada’s copyright laws – even though the host site may be in Canada, the act of placing works on the Internet is an International act. By making a work, no matter how legal in one’s own country, downloadable in a country where it is still in copyright means that the act does facilitate the breaking of that copyright. Wishing it were not so does not abrogate the legal reality.

This fallacy turns up again and again, but has been rebuked by various Canadian copyright experts already. It would be a good thing if a Canadian court would be willing to look into it, and make it clear once and forever. This will require an organisation with sufficient financial and legal backing in Canada, to purposely and prominently post one of the contested works on its servers, and invite UE to sue them. If they don't sue, ISMLP can go back online as well. If they do, the outcome will almost certainly be that you need not implement IP filtering, or other rubbish when you publish something on-line in Canada, which, incidentally can also be accessed from Austria.

Since I am in the Netherlands, I cannot do this, but I can try to find an organisation to do the same with one of the contested works that are PD in the Netherlands (life+70).

[mastro1]

I thank jhellingman for his reply.

All of this may be true, but it still begs the question that, with so few works in question, why take on the copyright morass and kill the site in the process. A volunteer-driven service website is not the forum for serious copyright reform. Also, consider that a Canadian court may so rule, but other countries are not bound by that ruling.

Plain and simple, bring the site back without the contested copyrighted material. Let someone else do the Quixotean pursuit of reforming international copyrights. It is so outside the abilities and resources of IMSLP.

Let me see my Schubert scores and I'll gladly pay a few dollars for Bartok. We are not going to win a war of insurgency in the copyright jungle (did I just make a political statement too?).

Mastro1

[Yagan Kiely]

I thank jhellingman for his reply.

All of this may be true, but it still begs the question that, with so few works in question, why take on the copyright morass and kill the site in the process. A volunteer-driven service website is not the forum for serious copyright reform. Also, consider that a Canadian court may so rule, but other countries are not bound by that ruling.

Plain and simple, bring the site back without the contested copyrighted material. Let someone else do the Quixotean pursuit of reforming international copyrights. It is so outside the abilities and resources of IMSLP.

Let me see my Schubert scores and I'll gladly pay a few dollars for Bartok. We are not going to win a war of insurgency in the copyright jungle (did I just make a political statement too?).

There are many fallacies and assumptions in your first post which I couldn't be bothered going through.

We will not delete scores that are PD in a majority of the world just because people in the US and Europe want the other stuff back. Have some patients.

[emeraldimp]

All of this may be true, but it still begs the question that, with so few works in question, why take on the copyright morass and kill the site in the process. A volunteer-driven service website is not the forum for serious copyright reform. Also, consider that a Canadian court may so rule, but other countries are not bound by that ruling.

As always, there is more to the story than the "copyright morass", but I think the desperate reaction of so many users indicates that there is a definite need for, firstly, the public domain (and access to it), and, secondly, international copyright reform. And I hope that it will inspire some to work to achieve it. I certainly hope that there are a good many who look at this and say, "That's wrong, I'm going to work on fixing it" instead of shrugging their shoulders and saying, "Well, it's something for someone else to fix."

'Cause guess what... if we don't oppose it now, it's only going to get worse. (It might get worse anyway, but at least we won't have sat idly by and watched.)

[Carolus]

Again, some of our new arrivals here seem to completely miss the point. Here's a typical example:

Wishing the whole word were under Canada’s copyright laws – even though the host site may be in Canada, the act of placing works on the Internet is an International act. By making a work, no matter how legal in one’s own country, downloadable in a country where it is still in copyright means that the act does facilitate the breaking of that copyright. Wishing it were not so does not abrogate the legal reality.

Maestro, the author of the example, somehow manages to flip the entire issue on its ear. The blunt truth is that the majority of the world observes a copyright term like that of Canada - life plus 50. The minimum term of the Berne treaty, the world's oldest International Treaty (1883) covering copyright, is life-plus-50 - just like Canada's term. What UE and its lawyer were attempting to do was force the EU's life-plus-70, and in some cases Spain's life-plus-80, copyright term upon the rest of the world. This is nothing short of a direct assault upon the public domain of numerous countries, including that of Canada. To paraphrase IP attorney Howard Knopf, who has an extensive track record in IP law, it's a brazen example of "over-reaching" which borders on barratry. Feldmahler, and those of us who've been working with him to make this site the most copyright compliant site of its kind in the world, are not going to give in to this outrageous behavior. Legal help is on the way, and IMSLP will re-open. Be patient.

[santiago]

How sad... just heard the news, cannot do anything yet but perhaps add my voice to the tummult: of course donot worry Feldmahler yours IS the vision of the future, the fact that a couple of people with tunnel vision cannot yet see it does not make it less what is meant to be. Let history push them appart, their ... business ... has its days numbered. Rather prepare for the day that eventually the project will rise , we'll see to that. Meanwhile those of us who live in remote places you mention will have to serttle for our lack of musical communication, encouraged by the proverbial greed of the editor.

[jhellingman]

All of this may be true, but it still begs the question that, with so few works in question, why take on the copyright morass and kill the site in the process. A volunteer-driven service website is not the forum for serious copyright reform. Also, consider that a Canadian court may so rule, but other countries are not bound by that ruling.

Well, one thing might be to drive home the point that copyright is now killing creativity, and a reform is badly desired, even by the people (authors and composers, the latter being among the most frequent visitors of this site) who the current law claims to protect. Yes this is a political fight, where people have been able to ask and receive from bribed law-makers what is not theirs anyway. Access to cultural heritage is a human right, and once material has gone through one or two generations (between 25 to 50 years), things certainly belong to cultural heritage. It is on us to revert this give-away of rights, and make sure our cultural heritage is truly protected, and not in the hand of C&D wielding mafiosi, who certainly will not mind kicking you out of your house, and making you homeless for a minor nuisance to them. (Remember the US file sharing case with its outrageous penalty award)

Since you are with apparently with a university, won't your university legal department take up the challenge? It would be a great service to mankind, and the proliferation of culture and knowledge, which will certainly stand in its charter...

[mastro1]

I must admit that I was taken back by the somewhat personal replies to my honest attempt to add to the discussion. Even allowing that the moderators workload must be tremendous, it does not allow the freedom to respond in such ways.

Most disturbing was the line "just because people in the US and Europe want the site back ..." ... I thought that the Internet was a state-less entity. And, the name of the site starts with the word International ... not Canadian. Such a response just reinforces my points about the futility of an attempt to reform copyright laws on an international basis.

Copyrights are a matter of national sovereignty. They are not subject to any international overriding law ... the World Court? I can assure you that each country or entity will stand on its hind legs and bellow that you have no right to meddle in its affairs (that was why I used the metaphor of the territorial boundary lines). If you wait to get all countries to abide by the same life+ formula, we'll have the site back up in the next century, not this one.

As for the lament that my posts were riddled with false thinking and assumptions, gentlemen, I've read most of what is on this forum. Without solid, transparent, information on the day-to-day happenings in this affair, we are left to assume. So, educate us, please.

As to the suggestion that my University could take up this fight ... I can assure you that any University that exists is already embroiled in its own suite of suits and such a request would be laughed at. Let's keep it realistic.

I know, I know ... if I don't agree with the position taken by those entrusted with the site, more such personal and dismissive responses will result. And, frankly, I have better things to do with my time than get into an email fight. As a citizen the US, I've had it up to here with "you're either for us or against us" thinking.

My posts have been an honest attempt to counsel reality in a bad situation. As a published author, I am very aware of copyright abuses around the world and I also know how much money and legal wheel spinning is involved. While each of those in countries with excessive life+ formulas might fight to get things changed, I would imagine the effect that my protest will have on my EU brethren if I asked them to reduce to the "standard" life+50.

I just beg for a reality check here and ask, what is owed to those who have contributed so much to adding to the site (having only been aware of the site for 3 weeks, I didn't get to contribute in any way) ... is all that effort to be held hostage because of the philosophical leanings of the leadership?

I work very hard to understand the posts coming at me and respect those opinions while reserving the right to disagree. I am not dismissive of your points, and I don't expect you to be dismissive of mine.

A sad, but sincere,

Mastro1

[pml]

Hi "Maestro" (Mastro1),

I think some of those who replied to you may have over-reacted somewhat and upon reflection would probably want to temper the occasional ad hominem phrasing, and instead simply respond to the arguments.

It is arguable both IMSLP and Universal Edition have tried to "have their cake and eat it too", and I will explain it this way:

IMSLP has attempted to offer the maximum amount of public domain works available to the citizens of any country: as Carolus has said, a larger proportion of the world's population live in the greater number of countries that observe the term of 50 years "post mortem auctoris"; and the minimum Berne term is also "life + 50". If not Canada, IMSLP could be hosted in China (population well in excess of a billion people), Indonesia, Bangladesh, Pakistan, or Japan, five of the ten most populous countries in the world that observe a similar duration copyright term (the other five are "life+70", except for India's curiously different "life+60").

It is arguable there should be technical measures instituted to prevent copyright piracy by blocking downloads from the subset of countries that have longer copyright terms (up to "life+100" as has recently been enacted in Mexico). However technical measures can always be subverted by a variety of means, and in the end it is the honesty of the downloader that is the variable, not any IP blocking or other server-imposed restrictions. One solution would be to set country-based cookies on any visitor to IMSLP who wants to download potentially copyright-infringing work and permit or deny access to files accordingly; the downloader would have to deliberately commit fraud of national identity in order to access the works.

Ironically, the attempt to lengthen copyright terms from the Berne minimum of 50 post mortem auctoris to 70 was to "harmonise" national laws. This is, as far as I can see, a complete failure. So perhaps the lesson here is that the Internet often being without clear national boundaries has to respect the laws of the country that is legally the lowest common denominator country (e.g. Côte d'Ivoire or Mexico), in which case perhaps we will see Disney Corp. or some other multi-national buy the nation of Nauru and declare perpetual copyright as law so that every other nation in the world must be greatly inconvenienced by threats of lawsuits launched in Nauru but enforced whereever they wish to intimidate others. So say goodbye to currently copyrighted works ever entering the public domain.

If that seems ridiculous, consider what U-E wanted to do (by the cake and eating it too metaphor). They wanted to bring a suit in Austria, based on possible copyright infringement in other European countries - notably Spain - and then they wanted to be able to enforce a judgement from an Austrian court against a Canadian citizen (the second cease-and-desist letter is explicit on this point). Basically Ken Clark's letter says, "we will sue you in whatever country is convenient to us - and then once we have the judgement we want, we will try to hound you in whatever country would be inconvenient for you." Nice one, that.

Regards, Philip

[Peter]

I want to inform the numerous users who demand (with varying degrees of politeness) bringing back IMSLP without E.U-copyrighted files, and demand it now. You have to understand that there are still some 4000-5000 files online that are unreviewed, because they were uploaded before the copyright tagging system was installed. Hence, we just cannot simply click and delete all files with a specific copyright term, so bringing back IMSLP in that form would not even be possible on short term.

Make a guess how much time is needed for reviewing these files.