Category Archives: Music Copyright Law

IMSLP for the Public Domain: Golan Brief Submitted

I’m happy to report that the amicus brief announced a few weeks ago, where IMSLP asks the U.S. Supreme Court to reject the restoration of certain copyrights including that of Shostakovich, has been submitted to the Supreme Court.  The entire brief is available for public viewing along with the other amicus briefs submitted, all of which can be found in the Supreme Court case file.

Currently only briefs supporting Golan have been submitted. The Government’s brief in opposition, and amicus briefs supporting the Government or neither party, will be available later in August.  The Supreme Court has set the date for oral argument to be Wednesday, October 5th, 2011.

This excellent amicus brief is the result of the hard work of a very bright group of Harvard Law School students supervised by Professor Charles Nesson.  I want to thank them on behalf of all IMSLP contributors and users for their dedication and energy, especially in the face of a very tight deadline.  Here is a list of students who participated in writing the brief:

Phillip Hill (HLS ’13) (Project Leader)
Matt Becker (HLS ’13)
Ruchi Desai (HLS ’13)
Tim Grayson (HLS ’13)
Jeff Habenicht (HLS ’13)
Laura Hill (HLS ’13)
Shira Hoffman (HLS ’13)
Wes Lewis (HLS ’13)
Nathan Lovejoy (HLS ’13)
Joey Seiler (HLS ’12)
Ellen Shapiro (HLS ’13)
David Simon (HLS LL.M. ’11)
George Tsivin (HLS ’13)
Huaou Yan (HLS ’13)

Golan v. Holder: Should Shostakovich be Public Domain?

I am happy to announce that IMSLP will be submitting an amicus curiae brief in the U.S. Supreme Court case Golan v. Holder, a case challenging the constitutionality of copyright restoration under Section 514 of the URAA.  A group of Harvard Law School students led by Phillip Hill (HLS ’13) and supervised by Professor Charles Nesson will be representing IMSLP.

IMSLP will be supporting the petitioners, which includes a group of orchestra conductors, educators, performers, film archivists, and motion picture distributors.  If we prevail and URAA § 514 is struck down as unconstitutional, all of Prokofiev, Shostakovich and Stravinsky (among others) will be public domain in the U.S., and potentially available on IMSLP.

In fact, the music of these three composers was public domain before URAA § 514 restored copyright in 1995.  This restoration is very dangerous precedent: Congress believes it has the power to usurp the public domain for the benefit of a few copyright holders, despite the Constitution limiting copyright to “limited Times”.  This limitation would seem meaningless if Congress could restore copyright whenever it wants.  If we allow URAA § 514 to stand, we would be one big step closer to perpetual copyright.

Furthermore, URAA § 514 also tramples on the right to freedom of speech of all artists who relied on these works before the copyright was restored, by forcing them to retract and make unavailable derivative works that were created legally.

IMSLP greatly welcomes the Supreme Court’s decision to take up such an important case, and hope to see an affirmation of the strength and vitality of the public domain.

Leo Ornstein and publishing agreements

The following article by Severo Ornstein, son of composer Leo Ornstein, describes the dangers of publishing agreements.

Leo Ornstein

The Russian born composer and pianist, Leo Ornstein, was a well-known figure in American music in the early part of the twentieth century. A number of his compositions were published in the 1910-1930 era, but he stopped performing about 1930 and by the middle of the century his name was largely forgotten. Then in 1973 Vivian Perlis presented a paper about him and his music at the American Musicological Society meeting which, together with a few LP recordings, led to a revival of interest in his music. About a dozen works were published in the ensuing decade by Joshua Corporation (an affiliate of General Music Publishing).

After retiring in 1985, I decided to dedicate myself to bringing fresh attention to my father’s music because it seemed to warrant far more than it was receiving. The first task was to organize his oeuvre. As I explored the archive of his works at the Yale University Music Library, it became clear that efforts by my mother to maintain order had been only partially successful. The two of them had focused on his composing, she acting as his scribe. Given my father’s indifference to such things, all other matters – publishing, copyrights and the like – received scant attention. In addition to the published works a large number of manuscripts, many unnamed and/or undated, were held in the Yale archive. I obtained copies of everything and put the works in order as best I could, assigning a unique “S-number” to each piece.

Leo Ornstein

After abortive attempts to interest major music publishers in publishing the music, I gave up and in 1987 set about printing the unpublished music myself using the only computer program then available that could handle all of the necessary notational devices. After a decade of work I had printed some 1,700 pages of piano music. These I assembled, together with copies of earlier published works, into a 13-volume set and published under the name Poon Hill Press. With funding from an interested friend, copies of the set were placed in a dozen or so university libraries around the world. For a time I also sold the volumes at cost, but discontinued doing so after 1990 when my son David and I built a website containing PDF versions of the scores which could be downloaded for free. We also put assorted audio recordings and other information about Ornstein onto the website (http://LeoOrnstein.net).

Although my father had left all rights to his music to me, profit was never a need or a motive for me; nor did I believe that significant money would ever derive from such esoteric music. My only purpose was to make the music better known and accessible to performers. So I spent my time on the music itself rather than on attempting to unravel the confused copyright situation. I believed that by then (1990) those works which had been published in the early part of the century were in the public domain. However I was somewhat concerned about the works which had been published by Paul Kapp, the owner of Joshua Music Corp. I knew that he had died and that all his publication of my father’s music had ceased. I learned that his heirs had sold the rights to everything he had published to EMI Screen Gems who were primarily interested in rights to the popular song, I Left My Heart In San Francisco.

Leo Ornstein brochure

My father had signed a contract with BMI and as his heir I became eligible for the composer’s royalties they collect for performances of his music. When I looked at their listing of his works, however, I was dismayed to discover the same sort of confusion that was manifested in the manuscript collection at Yale. There were duplicate entries for the same work, some sets were listed both as a set and as individual pieces, etc. What really surprised me, however, was that EMI Screen Gems was listed as the publisher of numerous works that had never been published except by myself, as well as of works that had never been published by anyone.

I protested to BMI that their files contained errors, and above all that some of the listed publishers were incorrect. I offered to help them straighten out their records, but they were unwilling to bother, citing a lack of funds in the classical music division. Eventually BMI sent me a copy of the contract that my parents had signed with Paul Kapp and which EMI had presented to BMI to substantiate their claim to the works. That copy turned out to be only partial and in particular omitted the page containing a handwritten correction in my mother’s hand. On that page my mother had carefully inscribed the single word “published” after the words “the entire group of works” in an attempt to circumscribe Kapps claim to the entire oeuvre. I have a letter from my mother written at the time explaining that although Kapp had wanted to be granted rights to all of my father’s works, they had taken pains to be sure that he was granted rights only to those works which he actually published. This concern is discussed in the recent biography of Ornstein by Broyles and Von Glahn.*

ornstein - modernist

After abortive exchanges with both BMI and EMI, I concluded that, despite the lack of significant commercial value, in order to get EMI to relinquish their unwarranted claims and to get BMI’s records corrected I would have to hire a lawyer, threaten a lawsuit, etc. Although it was painful to have to accept the situation, I decided my job was to make the music accessible, not to embark on a struggle with the music establishment. Unwilling to expend further funds and effort in legal pursuit, I let the whole matter lie – where it has lain ever since. I can only assume that, based on BMI’s files, EMI has continued to receive publishing royalties for performances of works that I actually published or that no one has published.

On the positive side, I’m pleased that my efforts have resulted in a continuing interest in my father’s music and that new recordings are being pursued even as I write. The music itself will outlive all of us and will ultimately find its proper place in the lexicon of twentieth-century American music.

___________________________________________________

* Michael Broyles and Denise Von Glahn, Leo Ornstein, Modernist Dilemmas, Personal Choices, Indiana University Press, 2007, Page 271

IMSLP & the MPA – Thank You

During the recent take-down of IMSLP by the UK Music Publishers Association something heartening happened.

People went to download a score from IMSLP and found the site unavailable. News of the take-down spread on Twitter and elsewhere.

A substantial cross-section of the international classical music community pianists, conductors, viol consorts, composers, music students, music librarians, makers of ornate wooden music stands, music journalists, opera singers, music academics – went on the internet and expressed their unhappiness at the MPA’s behaviour.

The MPA, rather unwisely, then tried to persuade IMSLP Journal to censor the take-down notice. We declined and publicised the demand – the attempted take-down of the take-down notice (I know, I’ve read Kafka too). Cue: a further trumpet voluntary of incredulity rang out across cyberspace.

A few hours later the MPA used Twitter – interestingly – to raise the white flag.

Why heartening?

  • the speed with which the MPA was persuaded to see reason. When Universal Edition attacked IMSLP, the take-down went on for months. Okay, circumstances differ in this case, but the fact remains that IMSLP was back online within 24 hours;
  • the solidarity shown by musicians from across the globe in support of IMSLP. It was a genuine international coalition. Classical musicians can be fractious and egotistical but, in the end, they’re trained to play together. It’s their job. Give them a good score and they make a terrific noise;
  • the skill and confidence with which the new media – Twitter, Facebook, blogs, forums etc – was used to place pressure on the MPA. Classical musicians should be proud.

IMSLP – non-profit, staffed by volunteers – is an organisation which musicians have shown themselves willing to defend. It’s an essential part of the world music scene; an iconic cultural treasure trove for everyone concerned with music heritage.

IMSLP is also a jewel in Canada’s artistic crown, as a recent CBC News report illustrates. To attack IMSLP is to attack Canadian high culture. Music publishers beware. Do you really want the Mounties after you?!

This article is to thank musicians and music-lovers everywhere for defending IMSLP. It’s fair to say that without your support last month IMSLP would still be offline.

Download Jeremiah Clarke’s Prince of Denmark’s March from IMSLP

IMSLP, Copyright & the MPA (UK)

All IMSLP score pages on the wiki now carry the following statement:

imslp-mpa

Example

This post on the IMSLP forums by Carolus, an IMSLP administrator, explains the background:

***

Now that things are calming down some, I wish to thank the Music Publishers Association of the UK for retracting their DMCA complaint to GoDaddy. GoDaddy’s standard response to a DMCA copyright complaint of this nature is to freeze the domain for 10 days, instead of referring the complaint to the site owner. Thus we all owe the MPA-UK sincere thanks for their retraction. I also want to take the opportunity to point out that IMSLP in no way advocates the violation of copyright laws, either now or in the past. As our disclaimer – which must be acknowledged before any visitor is allowed to download a file – explicitly states:

Please obey the copyright laws of your country and consult the copyright statute itself or a qualified IP attorney to verify whether a certain file is in the public domain in your country or if downloading a copy constitutes fair use.

In many cases where a given work is most likely still protected in one or more of our three territorial divisions – 50 pma countries, the USA, 70 pma countries – we have provided direct links to copies of the item available for sale at Sheet Music Plus or at Amazon. Full Disclosure: IMSLP does receive commissions from both concerns if someone actually purchases a copy, which go to fund our operating expenses – which have never stopped increasing as we’ve grown.

Thus, if Rachmaninoff’s The Bells, Op. 35 is still under copyright in your country, you should be purchasing the score from its lawful copyright owner unless the fair-use provisions of your country’s copyright statutes permit the download of the score and you are operating within those exemptions. It might not be legal for you to download the score from this site, so please be certain it is before you do. This, of course, was the one of the main issues of the cease and desist letter Feldmahler received back in the fall of 2007 from Universal Edition. They were demanding that IMSLP set up some sort of automated blocking system based upon the users IP address. There are a number of reasons that such a scheme is simply not feasible, but I’ll just address a single major one here: the lack of uniformity about what constitutes a fair-use exemption to copyright among the laws of various countries.

One reason our copyright tagging system works as well as it does is that we have divided copyright laws around the world into two major groupings according to term length: life-plus-50 years (Canada, Japan, China, and a majority of countries in the world outside of Europe) and life-plus-70 years (Europe and a few other countries – like those in the former USSR), plus a major exception to the general rule. The monster exception is of course the USA, whose copyright law is probably the most complicated morass of rules and exceptions found anywhere on the planet. The fact that our parent company is headquartered there – despite the main server’s Canadian locale – means we absolutely must pay very close attention to US law. Thus we have three major copyright classes under our tagging system: 50-pma / USA / 70-pma. That’s why you see a three-part indication for every file. A tag reading V/V/V should be free almost anywhere in the world.

There are approximately 180 different laws in force worldwide at present. It is simply not possible for anyone – not even a major commercial concern like Amazon – to keep daily track of 180 or more different copyright laws, each with different exemptions for fair use and other purposes, etc. – many of which are also frequently subject to changes, from either legislative amendments or judicial interpretations.

IMSLP & the Music Publishers Association

IMSLP ~ Music Publishers Association

The following was posted on the IMSLP forums earlier today. Additional background material here.

***

IMSLP is currently under an extraordinarily underhanded legal attack by the Music Publishers Association of UK (http://mpaonline.org.uk).

The MPA, without notifying us, sent to our domain registrar GoDaddy a bogus DMCA takedown notice.  GoDaddy took the entire IMSLP.ORG domain down.  IMSLP has filed a DMCA counter notice with GoDaddy, however, the DMCA seems to require the registrar to wait no less than 10 days before restoring service.  This means that IMSLP is inaccessible from IMSLP.ORG during this period of time.  We will be working to restore service as soon as possible.

What is the MPA complaining about?  Rachmaninoff’s Bells, which is public domain both in Canada and the USA: [link]. MPA’s claim is entirely bogus.

Workaround:  You can still reach the site by using either petruccilibrary.org or petruccimusiclibrary.org  Note, however, that some links on the site that refer to IMSLP.ORG may be broken; you will have to manually replace IMSLP.ORG with one of the two above domain names manually in the URL bar.

Anyone who is interested in suing or helping to sue the MPA under DMCA section 512(f) (misrepresentations) please contact me at imslproject <at> yahoo.ca.  Note that the feldmahler <at> imslp.org address is likewise offline.

The following is the e-mail that GoDaddy received from the MPA.  IMSLP / Project Petrucci LLC grants everyone permission to reproduce it in part or in its entirety.  I also grant everyone permission to reproduce the above post in part or in its entirety.  Please feel free to make this incident as widely known as possible.

Dear sirs

We, the Music Publishers Association, take action to remove unlicensed copyright material from infringing websites.

We understand that Godaddy are the sponsoring registrar for the website http://www.IMSLP.ORG which makes available unlicensed copyright protected sheet music notation which is an infringement of copyright. By assisting this website, Godaddy are liable to pay damages for secondary copyright infringement once notice of the infringement has been given.

We therefore request that you withdraw from all associations you have with http://www.IMSLP.ORG and retract their domain name so that the website cannot be accessed.

An example of the infringing material on http://www.IMSLP.ORG is ‘The Bells’ by Rachmaninov which can be reached via: [link]

This material is copyright protected in most counties including all European countries and the USA.

Here are the registrant’s details to the best of our knowledge:

Registrant Name:Edward W. GuoRegistrant Organization:Project Petrucci LLCRegistrant Street1:205 S. Charles St.Registrant Street2:Registrant Street3:Registrant City:EdwardsvilleRegistrant State/Province:IllinoisRegistrant Postal Code:62025Registrant Country:USRegistrant Phone:+1.6186565143Registrant Phone Ext.:Registrant FAX:Registrant FAX Ext.:Registrant Email: imslproject@yahoo.ca

We have good faith belief that use of the material in this manner is not authorized by the copyright owner or the law.

The information in this notification is accurate and we confirm, under penalty of perjury, that we are authorized to act on behalf of the copyright owner of an exclusive right of that is infringed.

I would be grateful for your response detailing your undertakings by 3 May 2011.

Yours faithfully,

Jake Kirner Printed Music Publishing Administrator Music Publishers Association 6th Floor, British Music House, 26 Berners Street, London W1T 3LRDirect Tel: +44 (0)20 7637 4052Fax: +44 (0)20 7637 3929 (please confirm fax by sending me an email)jkirner@mpaonline.org.uk <mailto:jkirner@mpaonline.org.uk>http://www.mpaonline.org.uk <http://www.mpaonline.org.uk/>the_MPA on twitter <http://twitter.com/the_MPA>

Classical Music & the Cloud



Would you trust that man with your music files?

But there’s no reason why Steve shouldn’t look after your program files. Why bother keeping, say, MS Word on three different machines? Let Steve store the code in his cloud, updating it, keeping it virus free, giving you access to it when you need to write a letter.

But if he gets his hands on your music files, how soon before he allows some corporate suit from Sony access to them? Or access is driven by court order as music labels seek to enforce their interpretation of copyright law?

Better for music to stay on tens of millions of privately owned machines. It’s too important to be left to excitable Steve, his corporate friends and their $2,000 per hour lawyers.

IMSLP-EU ~ Report

imslp-eu

IMSLP-EU is an autonomous initiative undertaken in Europe to allow European users to access scores that are public domain in Europe but not in the U.S. or Canada. This is possible because IMSLP-EU servers are physically located in Europe (currently, in The Netherlands), so scores that are in the public domain in such territory can be freely used by anybody. This would be beneficial for all users located in Europe and in other countries where similar copyright regulations apply.

IMSLP-EU is not affiliated with IMSLP, being a completely independent and autonomous initiative. Complete separation between IMSLP and IMSLP-EU is intended to avoid confusion between the respective roles, areas of competence, and applicable regulations: IMSLP follows U.S. and Canada regulations only, while IMSLP-EU follows EU regulations only (with reference to their specific application in The Netherlands).

The IMSLP-EU score catalogue is integrated within the Petrucci Music Library: there is no difference when searching IMSLP-EU scores with respect to IMSLP scores, as both sets are indexed in the catalogue of the library.

However, when a score at IMSLP-EU is going to be downloaded by a user, a special page is presented so as to inform and warn the user that he/she is leaving the IMSLP context and entering the IMSLP-EU context, where different regulations apply. The same special page provides a PayPal link for donations to IMSLP-EU: being completely autonomous with respect to IMSLP, IMSLP-EU needs independent funds to cover its operational expenses.

The start of operations of IMSLP-EU was announced on July 10, 2010. Here are some figures after 6 months:

  • Total uptime: 99.94%
  • Number of files downloaded: more than 820,000
  • Number of files present on the server: about 1,300
  • Average number of downloads per file: about 630
  • Largest number of downloads for a single file: more than 31,000 (the full score of “Pini di Roma” by Ottorino Respighi).

Music Librarians & Magic Super-Copyright

photocopy_machines


Most music librarians are saints: knowledgeable, hard-working, not paid enough.

But a few regard their employer's sheet music collection – much of which may be public domain – as their private property, and view those seeking to copy it as dangerous subversives who should be blacklisted from libraries across the known universe.

The notion that all printed music is protected by magic super-copyright may be a reaction to unlawful photocopying of music by students in the past. But that's no excuse for a professional librarian, trained in copyright law, to restrict the lawful copying of public domain music.
 
A similar point can be made about some music examination boards who enforce a 'no playing from photocopies without written permission from the publisher' rule upon examinees.

If the music is copied from a public domain source there is no good reason why it can't be used in an examination, with or without the publisher's consent. It's absurd to insist that an impecunious student should spend money on public domain sheet music which is available for free, legal download.

Far better for the money to be spent on copyrighted music so a portion of it goes to a living composer, and to a publishing house brave enough to publish his or her music, as opposed to one which churns out public domain reprints.

If you've had experience of 'music copying paranoia' share it here! Over-protective librarians, and others, can be referred to this post and encouraged to enforce actual copyright law as opposed to a fantasy which seems designed to stuff money into music publishers' pockets.