First Cease and Desist request text and reply

[imslp]

Due to request, I've uploaded the first C&D request and contract that I've received from Universal Edition back in August, also including my reply.

First_UE_Cease_and_Desist_Contract.doc
First_UE_Cease_and_Desist_Letter.doc
U-E_First_CD_Reply.pdf

[emeraldimp]

Merci beaucoup. Very informative.

[Carolus]

Just of ease of reference, here is the original C & D letter and contract:

LETTER

Vienna, 13. August 2007


International Music Score Library Project „IMSLP"
8130 78 Ave. NW
T6C 0N4, Edmonton CA
Canada



Wien, 01.01.2000

Copyright protected works controlled by Universal Edition AG


Dear Sirs;

On the website http://imslp.org IMSLP offers musical compositions for download drawing attention to the fact that IMSLP strives to comply with Canadian copyright laws.

Universal Edition AG is the publisher of some of the composers mentioned on your website. The works in question are created by B. Bartók, A. Berg, I. Friedman, L. Janacek, G. Mahler, J. Marx, O. Respighi, A. Schönberg, R. Strauss, K. Szymanowski and A. von Zemlinski.

In Canada these composers are in public domain, but there are several countries providing copyright protection – this might be the general protection of 70 years after the composer´s death, but also special rules: e.g. the registration system in the USA, the war time extension in France or a longer duration - 80 years in Spain.
This is the reason why the making available to the public and the download of these works could infringe copyright.

Therefore I would kindly ask you to stop offering the works mentioned below and to sign the herewith enclosed cease and desist statement and to return it to me on 31 August, 2007 at the latest.


Yours sincerely



Dr. Isabella Hangel
Copyright department

-------------------------

CEASE and DESIST STATEMENT

International Music Score Library Project („IMSLP")
8130 78 Ave. NW,
Edmonton T6C0N4, CA
hereby declares in favour of
Universal Edition AG,
FN 73843v,
Bösendorfer Straße 12,
A-1010 Wien

1. to immediately cease and desist to offer copyright-protected material belonging to Universal Edition AG (see attachment)

2. upon each violation of my undertaking under item 1. above, I explicitly agree to be obliged to pay – in waiving the defence of continued offense ("Fortsetzungszusammenhang") – to Universal Edition AG a contractual penalty, non-reducible by Court, in the amount of EUR 3,000 for each violation of the aforementioned undertaking. Further claims of Universal Edition AG for damages exceeding such contractual penalty remain unaffected.

3. This Cease and Desist Statement is subject to Austrian law.

4. Place of jurisdiction is Vienna.




___________________________
International Music Score Library Project („IMSLP")

ATTACHMENT
(with original publication dates, publisher, and IMSLP holdings info added by Carolus)

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) - public domain in EU on 1/1/08, unless work first publ. after 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)

(My remark from the previous post)

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).

(Comment)
This is a total of 70 works - 210,000 Euros. The Joesph Marx works at IMSLP were all published before 1923 and were hosted on IMSLP's US server, where those titles are public domain. It is hardly accurate to characterize this as "repeated polite and direct attempts to discuss in an amiable manner" - unless one's concept of 'polite and amiable' are similar to those of John Gatti (an American Mafioso, for those unfamiliar). One of the threats from the Canadian law firm hired by UE was that UE would seek a summary judgement in a EU court, whose ruling would require IMSLP to pay (at least 180,000 Euros) - and that said EU court judgement would then be enforced by a Canadian court.

UE apparently thinks it is IMSLP's responsibility to enforce EU copyright laws in Canada, instead of UE enforcing EU copyright laws on those users who may be violating EU copyright laws by downloading - despite explict warnings - works that are under copyright in the EU. This is not even attempting to address the issue of what constitutes 'fair use' in various countries of the EU.

Moreover, the practical feasability of installing the so-called blocking software that would allow users from the EU to access items that are clearly public domain in the EU while preventing downloads of copyrighted items is not so clear, simple or inexpensive as UE claims it to be. That issue could easily occupy a thread of its own, I expect.

[aslsp-fl]

In my opinion, the request to remove files from the server could be considered as fair, as long as it does not include composition already in public domain almost everywhere. However, only a fool out of his/her mind could have signed the statement putting the value of an infringement at euro 3000 per piece, and putting the competence of the case to an Austrian court. The requests are so absurd to be outlandish.

I will state it again: I am convinced that true amateurs are ready to comply to copyright holders requests, as long as they are fair. Putting them in the condition of being forced to comply to outlandish requests is very bad politics.

I add also my two cents: I do not believe people at UE are particularly malicious in this case. This seems to be their way of doing business (in a couple of cases I know, of losing business).

[imslp]

Apparently according to their lawyer "waiving the defence of continued offense" meant infringement after complying with the cease and desist. I'm pretty sure I'm not the only one who misunderstood that section, but I'll accept the definition.

[Odin]

Hello

After all we should stop all the discussions about removing some scores from the site when they actually are PD in Canada where the site is hosted.

I think UE is close to yield, they have already lost this fight - which they started - on a moral plane, and proceeding further would only give them more badwill for the future.

I think the site owners of IMSLP now can bully back and put THEIR demands and requests on the board, which UE will have to fulfil in the future.

Bullying back is often the best way to deal with people or organisations which start the bullying. That´s the reason for my behavior in this forum.

UE and the other publishers know that they can not defend old systems of rules and legislations which are no longer up to the spirit and the technology of our time. They understand that we have entered a new millenium. Their efforts to defend and to hold the lines of old and obsolete legislation systems based in the old millenium´s technology are doomed to fail. They would better retreat in peace and take part in negotiations with people like us how a fair (!) copyright system for the new millenium and for the new technology should be constructed.

They even now that they in the Pirate movement now are getting a political opponent which they in the long run will not be able to suppress.

Please, Mr. Feldmahler and all his friends - take courage and take advantage of the fact that UE is weakened and already is on the way to lose this battle on the moral plane.

Put the IMSLP "back on track" right now in its previous shape and ask UE to either yield to your conditions or "go to hell".

I am quite sure that the pirate parties movement will support you if you wish and if there will be any new trouble with UE or with other publishers who are still unwilling to accept the new time which we have entered.

Sincerely

[imslp]

I have already sent an e-mail to their lawyer regarding ISP-level filtering, and am awaiting a reply.

I have no desire to artificially reduce the public domain. What is public domain MUST be public. I see no reason for more than half of the world to obey by life+70 when they have only life+50 in their copyright laws.

The reconstituted IMSLP will continue to run under life+50 copyright laws. This is almost non-negotiable.

[Yagan Kiely]

I have already sent an e-mail to their lawyer regarding ISP-level filtering, and am awaiting a reply.

I have no desire to artificially reduce the public domain. What is public domain MUST be public. I see no reason for more than half of the world to obey by life+70 when they have only life+50 in their copyright laws.

The reconstituted IMSLP will continue to run under life+50 copyright laws. This is almost non-negotiable.

You have noIdea how relieved I am to hear you say that.

THANKYOU.

[emeraldimp]

Huzzah!

I am doubtful they will accept the ISP-level filtering, however. :-/ But I'll keep my fingers crossed (which makes it very difficult to type, let me tell you...)

[Yagan Kiely]

UE has no problem whatsoever with Canadian users in Canada downloading music which is public domain in Canada.
Please restart your servers! Please install a simple IP-geolocation software which will block European users from downloading copyright material.

At least they have backed off requiring IMSLP to delete the works and pay 180,000 euros. They seem happy to have (at least some sort) of IP blocking as opposed to there original demands.