Second U-E cease and desist letter

[imslp]

Some of you might have noticed how I have not been on the site very much. Well, here is why:

http://imslp.org/wiki/Image:Second_U-E_ ... Letter.pdf

I have had a rather lengthy discussion with Carolus on this, and we agreed to release this cease and desist letter on the forums for all to see. Currently, a lawyer team from the University of Ottawa is looking into this cease and desist letter. However, I would encourage any comments or help that other IMSLP contributors can find! I know the deadline is fast approaching, but any help is welcome

[pml]

I'll send my thoughts on this privately to yourself and Carolus. Regards, PML

[imslp]

The lawyer team at the University of Ottawa has just agreed to support the IMSLP should this matter proceed to litigation. A lawyer team at another university is also supporting, albeit not directly representing.

P.S. Thanks PML

[Carolus]

Just to have the list handy, here are the titles UE is upset about:

Bartók Béla (1881-1945)
Allegro Barbaro (pub.1918, UE) - IMSLP has a Muzika ed.
Bagatelles, Op. 6 (pub.1909, Rozsnyai) - IMSLP has a Muzika ed.
Burlesques, Op. 8c (pub.1912, Rozsavolgyi) - IMSLP has a Muzika ed.
Improvisations on Hungarian Peasant Songs, Op. 20 (pub.1921, UE) - IMSLP has a Muzika ed.
Little Pieces for Piano (pub.1927, UE) - IMSLP has a Muzika ed.
Petite Suite for Piano (pub.1936, UE) - IMSLP has a Muzika ed.
Piano Concerto No. 1 (pub.1927, UE)
Piano Concerto No. 2 (pub.1932, UE) - IMSLP has a Muzika ed.
Piano Concerto No. 3 (pub.1947, Boosey & Hawkes) - IMSLP has a Muzika ed.
[Four] Piano Pieces (pub.1904 Bard Farenc) - IMSLP also has Muzika ed.
Piano Sonata (pub.1927, UE)
Rhapsody, Op. 1 (pub.1908, Rozsavolgyi) - IMSLP has a Muzika ed.
Romanian Christmas Carols (pub.1918, UE)
Romanian Folk Dances for small orchestra (pub.1922, UE)
Romanian Folk Dances (pub.1918, UE)
[3] Rondos on Slovak Folk Tunes (pub.1930, UE) - IMSLP has a Muzika ed.
Sonatina (pub.1919, Rozsavolgyi) - IMSLP also has 1950 rev. ed.
String Quartet No. 1, Op.7 (pub.1911, Rozsavolgyi)
String Quartet No. 2, Op.17 (pub.1920, UE)
String Quartet No. 3 (pub.1929, UE)
String Quartet No. 4 (pub.1929, UE)
String Quartet No. 5 (pub.1936, UE)
Suite for Piano, Op. 14 (pub.1918, UE) - IMSLP also has Muzika ed.

Berg Alban (1885-1935)
5 Orchesterlieder, Op. 4 - no longer at IMSLP
Piano Sonata, Op. 1 (pub. 1910, rev.1920 Lienau)
Violin Concerto "To the Memory of an Angel" (pub.1936, UE)

Friedman Ignaz (1882-1948)
6 Mazurkas, Op. 85 (pub.1925, UE)
Piano Transcriptions (Grazioli) (pub.1913, UE)
Piano Transcriptions (Rameau) (pub.1913, 1914 UE)
3 Pieces, Op. 33 (pub.1911, UE)
Polnische Lyrik, Op. 53 (pub.1913, UE)
Polnische Lyrik, Op. 60 (pub.1915, UE)
Polnische Lyrik, Op. 72 (pub.1917, UE)
4 Preludes, Op. 48 (pub.1912, UE)
4 Preludes, Op. 61 (pub.1915, UE)
Stimmungen, Op. 79 (pub.1918, UE)
Studies on a Theme of Paganini, Op. 47b (pub.1914, UE)
5 Waltzes, Op. 51 (pub.1912, UE)
With the Marionettes, Op. 22 (pub.1920, UE)

Janacek, Leos (1854-1928)
Violin Sonata [No. 3] (pub.1922, Hudebni Matice)

Mahler Gustav (1860-1911)
Piano Quartet in A Minor - no longer at IMSLP
Symphony No. 1 (pub.1898, Weiinberger, rev.1906, UE)
Symphony No. 2 (pub.1897, Hofmeister, rev.1906, UE)
Symphony No. 8 (pub.1910, UE)

Marx Joseph (1882-1964)
Albumblatt (pub.1916, UE)
Ballade (pub.1916, UE)
Prelude and Fugue (pub.1916, UE)
Romantic Piano Concerto (pub.1920, UE)
Trio Phantasie (pub.1914, UE)

Respighi, Ottorino (1879-1936)
3 Preludes (pub.1920, UE)

Schönberg, Arnold (1874-1951)
2 Balladen, Op. 12 (pub.1920, UE)
15 Gedichte aus Das Buch der hängenden Gärten, Op. 15 (pub.1914, UE)
2 Gesänge für baritone, Op. 1 (pub.1903, Birnbach)
Klavierstücke, Op. 33a (pub.1929, UE)
4 Lieder, Op. 2 (pub.1903, Birnbach)
6 Lieder, Op. 3 (pub.1904, Birnbach)
8 Lieder, Op. 6 (pub.1907, Birnbach)
2 Lieder, Op. 14 (pub.1920, UE)
2 Little Piano Pieces, Op. 19 (pub.1913, UE)
3 Pieces, Op. 11 (pub.1916, UE)
Pierrot Lunaire, Op. 21 (pub.1914, UE)
Suite. Op. 25 (pub.1925, UE)
Verklärte Nacht. Op. 4 (pub.1904, Birnbach)

Strauss, Richard (1864-1949)
Piano Sonata, Op. 5 (pub.1883 Jos. Aibl)

Szymanowski, Karol (1882-1937)
4 Etudes, Op. 4 (pub.1906, UE)
Metopes, Op. 29 (pub.1922, UE)
Piano Sonata No. 2, Op. 21 (pub.1912, UE)
9 Preludes, Op. 1 (pub.1906, UE)
Variations on a Polish Folk Theme, Op. 10 (pub.1906, UE)

Zemlinsky, Alexander von (1871-1942)
6 Songs after Poems by Maeterlink, Op. 13 (pub.1914, UE)

Right off the bat, all but one (Joseph Marx) of the composers listed is very clearly public domain in Canada. The only way a work of one of these composers could be still under copyright in Canada is if it were first published less than 50 years ago (before 1957). I also note they list four composers (Berg, Janacek, Mahler, Respighi) who have been dead for more than 70 years who are PD in the EU. Moreover, Szymanowski will go public domain in the life-plus-70 countries (like Austria and Poland) on Jan. 1, 2008. Joseph Marx (d.1964) is still under copyright in Canada. Any work that was first published before 1923 is public domain in the US (the vast majority of titles listed above).

[Yagan Kiely]

IMSLP is not the one breaching copyright, as it is legal where this is held. Those who download it are the people breaching copyright, and IMSLP has a warning up for such people and we advise them to not download if in the EU (etc.). Blocking people is censorship, especially as it also blocks the rest of IMSLP which is PD in EU (am I right?). IMSLP will have the right to upload EU (c) material if PD in Canada for Canadian laws expressly states that it is life + 50 years. Chewing Gum is illegal is Singapore, does that mean Canada should forbid people from Singapore to by Chewing Gum in Canada?

Do bestiality pornographic websites block (say) users from Australia where it is illegal? (As far as I know) they do not. It is the decision of the viewers to commit illegal activities, not the legal hosters in another country.

Google also provides links to various illegal activities, should they be sued.

http://en.wikipedia.org/wiki/MGM_Studio ... ter%2C_Ltd.

While this on the surface is negative to the case against IMSLP if looked at from a different angle it doesn't. The Morpheus software does not try to deter the user from downloading (c) material. "We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties." IMSLP however expressively deters users from EU etc. to not download material which is copyright in there country.

http://en.wikipedia.org/wiki/Sony_Corp. ... ios%2C_Inc.

Although no directly related, the fact that an organization that creates the arena where copyright infringement is easily possible is within the law.

http://sillydog.org/forum/sdt_12450.php

The general use of iPods in australia was illegal until November 2006. And apple actually (although not expressively) promoted the infringement of copyright in Australia by promoting the copying of (c) music to the iPod device. They, as far as I can tell, where never sued or threatened.

http://en.wikipedia.org/wiki/The_Pirate ... nd_actions
Again, IMSLP is not a website designed to allow copyright infringement, it is designed to deter copyright infringement with applicable and promote legal downloading of PD music.

http://en.wikipedia.org/wiki/The_Pirate_Bay#_note-7

Example of legality.


I have focussed on p2p for they are a very extreme version of what IMSLP could be described.

EDIT: Would it be better if I PMed you?

[Carolus]

I suspect that UE is merely the leading edge here of what may well turn out to be a concentrated campaign by a group of certain publishers (primarily located in the EU) to legally strong-arm IMSLP into enforcing the copyright laws of the EU upon anyone visiting the site from the EU.

I've been posting the first publication dates of each title as I find them. In a fair number of cases, the UE edition of the work in question is not even available at IMSLP (the Bartok Allegro Barbaro, for example). So, they expect IMSLP to prevent anyone visiting from the EU from downloading a scan made from a Muzika edition of a work in their catalog. How can they claim they are harmed in any way by this?

To actually do this IMSLP would have to be able to block only certain pages of the thousands on the site from being accessed by domains in the EU. Moreover, it is not by any means certain that all of the titles in question are uniformly protected in the EU. Berg, Janacek, Mahler, and Respighi have all expired in most EU countries. All but a few of the titles in question were published in the composer's lifetime.

The more I think about this, the more I am realizing that this is a very important test case for the future of the public domain. I suppose UE or another publisher could buy a small island somewhere, claim nationality, proclaim perpetual copyright, then hire legal hit-men to enforce via threat of lawsuits all over the world.

[Vivaldi]

The thing is, the guys at UE will argue the fact the IMSLP provided the means for people from countries where the works are still protected to download the music, even though IMSLP is physically hosted in Canada.
A solution is by barring people from downloading them by using the IP address to determine their country of origin. But, as ArticWind7 had said, this amounts to censorship.

[Vivaldi]

The thing is, the guys at UE will argue the fact the IMSLP provided the means for people from countries where the works are still protected to download the music, even though IMSLP is physically hosted in Canada.
A solution is by barring people from downloading them by using the IP address to determine their country of origin. But, as ArticWind7 had said, this amounts to censorship.

[Yagan Kiely]

And most if not all cases that found p2p sites/programs guilty state that they promote illegal download of Copyright works. IMSLP expressively states the opposite.

IP blocking has to be a last resort, because (not only censorship {And we now how much flack Google has got from Censorship in China}) but would we need to block every nation for 70+?

Could someone explain the basics of fair use/dealing? And (although I doubt it) is there any way shape or form for it being used here?

[emeraldimp]

I wish I had something productive to add, but I really don't. (Though I once heard about a case where a company was sued in a territory they don't operate in, and so they told the court that they weren't under its jurisdiction; dunno how successful that was.)

Also... I'd check to make sure that UE actually has the authority to represent all those composers listed (or at least those pieces).

In any event, go get 'em! We're in the right, and this resource is too valuable to not fight for. Let us know if you need some monetary support.

[emeraldimp]

Oh, and IP mapping means nothing, by the way (though I'm sure you knew that). I can easily use a proxy to access another site, or Tor, or whatever; there are no real technical barriers that could be put into place (at least on our end) to prevent an EU citizen from accessing the site and downloading whatever they want.

I wonder if contacting Groklaw would help?

[Yagan Kiely]

Oh, and IP mapping means nothing, by the way (though I'm sure you knew that). I can easily use a proxy to access another site, or Tor, or whatever; there are no real technical barriers that could be put into place (at least on our end) to prevent an EU citizen from accessing the site and downloading whatever they want.

surely if one wanted to illegally download copyright material, one would have no pressure to not change there ISP number... we could only make it annoying for them.

Also... I'd check to make sure that UE actually has the authority to represent all those composers listed (or at least those pieces).

I believe they are adressing copyright concerns in Europe of the publications aswell.

[goldberg988]

My university subscribes to the Naxos Music Library, a wonderful resource for recordings. Naxos has some tracks available that are re-releases of older recordings. However, some of these tracks are still under copyright in the US, but not in the EU (if my memory serves me correctly), so they show up under a search, but if I try to listen, it will not let me access it, stating something about the copyright issue. They have obviously found an effective way to prevent unauthorized breach of copyright.

I'm going to be the devil's advocate here (not that all publishing companies are the devil ). This issue is one that I was waiting to come up, and I had thought about it a lot. Perhaps we should take some reponsibility for who accesses our site. A simple warning is not enough. For example, what if I was to scan a recent work by a living American composer, published in the US, and upload it to a private website. I could put a warning: "WARNING! Do not download this file unless you have gained permission from the publisher in writing to copy the work. Download at your own risk." I would have no grounds to support the existence of the link, and no court would side with me should it come to trial.

I would like to see some statistics on how many visitors to our site actually heed the warnings given. If fifty percent of downloads are performed illegally, and people gain unauthorized access to 20,000 copyright works every day, can we really blaim the publishing companies for their anger?

Lyndon

[emeraldimp]

My university subscribes to the Naxos Music Library, a wonderful resource for recordings. Naxos has some tracks available that are re-releases of older recordings. However, some of these tracks are still under copyright in the US, but not in the EU (if my memory serves me correctly), so they show up under a search, but if I try to listen, it will not let me access it, stating something about the copyright issue. They have obviously found an effective way to prevent unauthorized breach of copyright.

Yes; your access to the Naxos site is conditional on your university's subscription. You (I presume) would have no access otherwise. IMSLP is the other way around.

For example, what if I was to scan a recent work by a living American composer, published in the US, and upload it to a private website. I could put a warning: "WARNING! Do not download this file unless you have gained permission from the publisher in writing to copy the work. Download at your own risk." I would have no grounds to support the existence of the link, and no court would side with me should it come to trial.

True, a mere disclaimer would not absolve you from liability, but this is because you would be providing access to the material from a jurisdiction where it is illegal to provide it (assuming that the server is in the United States; there's probably some squishiness involved about your personal location). So it's not quite the same as the current situation: the works in question (I presume) are PD in Canada.

[emeraldimp]

Oh, and... I am not a lawyer.