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IMSLP is under attack!

April 21, 2011 at 11:14 AM

Today, the registrar of our domain, a division of Go Daddy, froze the domain name (imslp.org) due to a complaint issued by the Music Publisher's Association of the UK, who made two assertions in their complaint:
1. Rachmaninoff's work The Bells, Op.35 is under copyright in both the United States and the EU.
2. IMSLP is somehow responsible for enforcing EU copyright terms upon the entire world (the same claim UE attempted back in October 2007).

Go Daddy (a registrar based in Scottsdale, Arizona), apparently reacting to the DMCA complaint due to its assertion of US copyright violation, took the drastic and harmful step of freezing our domain name without first notifying us of the British MPA's nonsensical assertions. Accordingly, let me address the two points here in plain English.

1. Copyright status of Rachmaninoff's work The Bells, Op.35.
a) This work is definitely NOT under copyright in the USA. It was published in 1920 in full score, parts and vocal score by A. Gutheil, by then a division of Serge Koussevitzky's Edition Russe de Musique, headquarted at the time in Berlin, with branch offices in Moscow and Paris. As both the composer and the author of the Russian-language translation of Edgar Allan Poe's public domain text were Russian nationals (who had fled the Revolutionary government), the work was quite ineligible for protection under US law and was actually public domain there the minute the first copy was either sold, rented or offered for sale or rent under the author's authority. Even with the "restoration" of works under the GATT/TRIPs amendments to the US copyright law, this work was ineligible for protection as the 75-year term for existing copyrights had already elapsed (expiring on January 1, 1996 - the same day GATT/TRIPs went into effect). The Bells, Op.35 is presently available in a reprint edition from E.F. Kalmus in both the USA and Canada, to wit:http://www.kalmus-music.com/kalorchdetail.php?r=4574 . It is also available as a reprint from Luck's Music Library: http://www.lucksmusic.com/cat-symph/sho ... ogNo=11742 The full score was until recently available as a reprint from Dover (who has taken it out of print, along with a number of other things - for non-copyright reasons). Thus, the first part of the British MPA's assertion (The Bells is under copyright in the USA) is nothing less than a bald-faced lie.

b) While Rachmaninoff died in 1943, which would normally indicate that his work would be under protection in the EU, there are a couple of factors which argue against this: 1) He was a citizen of Russia, which had no copyright relations with most countries presently in the EU. (This could have been mitigated by Gutheil's having its main office in Berlin). 2) After leaving Russia (December 1917), Rachmaninoff's principal residence was in the United States (not an EU member) with a summer house in Hertenstein, Switzerland near Lake Lucerne (also not in the EU) from 1932-39. He became a US citizen about a month before his death in 1943. The EU, according to its most recent copyright directive, opts for the "rule of the shorter term" for works of authors whose country of origin is outside the EU. Thus, apart from the possible issue relating to Gutheil's office location in Berlin, Rachmaninoff works from the start through 1917 would be determined mainly by his status in Russia, where his copyrights expired in 1994 (50 pma term, never officially declared a 'non-person' by the Soviet regime). Those from 1918 onward (including posthumous works) would fall under US status (term determined by publication date, proper notice, renewal after 28 years, etc.). As we've already seen, the above work is clearly free in the USA - even with the GATT/TRIPS amendments. Thus, the assertion that the work is under copyright in the EU by no means certain, since under at least one interpretation of the EU's rule of the shorter term, it could conceivably be free there as well.

2. Neither the British MPA or Go Daddy has any valid business imposing the EU's ridiculous 70pma copyright term, as interpreted by the British PMA (hardly an objective source) upon users in the USA, or the rest of the world. Most places on the planet have 50pma copyright terms, including Canada, where the actual main server for this site is located. We have clearly indicated works which are least possibly under copyright in the EU and have posted notices that users should obey the copyright laws of their respective countries. Each country's law has its own unique features, even is the basic terms of protection are similar. Some countries have a broad "fair-use" exemption so that even if the above work were under copyright, a music student working on a paper referencing it might be free to make copies of the score as long as certain conditions were met. There is simply no practical way we can keep track of the unique wrinkles of the approximately 180 copyright statutes in force at present. We've previously discussed the entire domain-tracking argument and the numerous fallacies therein on other threads.

Needless to say, we've already responded to Go Daddy's arbitrary action with a request to reconsider their response. We are also looking into the pursuit of legal action of our own against the Music Publishers Association of the UK for their malicious attempt to shut this site down. Sad to say, the Evil Empire Strikes Back - all too soon. Too bad that a gang of dying companies running on a failed business model can't find anything more productive to do with their time (like maybe promoting the works of living composers, instead of playing lawyer over ones dead since 1943).

The MPA, without notifying IMSLP, sent to their 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: http://petruccilibrary.org/wiki/The_Bel ... _Sergei%29 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 yahoo.ca. Note that the feldmahler @ 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:
http://imslp.org/wiki/The_Bells,_Op.35_ ... ff,_Sergei)
http://216.129.110.22/files/imglnks/usi ... score_.pdf
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. Guo
Registrant Organization:Project Petrucci LLC
Registrant Street1:205 S. Charles St.
Registrant Street2:
Registrant Street3:
Registrant City:Edwardsville
Registrant State/Province:Illinois
Registrant Postal Code:62025
Registrant Country:US
Registrant Phone:+1.6186565143
Registrant 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 3LR
Direct Tel: +44 (0)20 7637 4052
Fax: +44 (0)20 7637 3929 (please confirm fax by sending me an email)
jkirner@mpaonline.org.uk

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