Monday, October 22, 2007

Universal Edition AG Lawyer Responds

I have received a courteous e-mail from Mr. Ken Clark, the lawyer at Aird & Berlis who acts for Universal Edition AG. He has asked me to correct certain “ factual inaccuracies” in my blog of earlier today. However, since I respectfully don’t agree with most of his assertions about these alleged "inaccuracies", I will simply post his letter below “as is”, with my brief comments to his three points, which are these:

1. It is true that he did not demand the whole site be taken down. However, the webmaster chose to do this because there appeared to be no other realistic alternative. As “Feldmahler” states, “I also understand very well that the cease and desist letter does not call for a take down of the entire site, but, as I said above, I very unfortunately simply do not have the energy or money necessary to implement the terms in the cease and desist in any other way.” This total take down was clearly foreseeable, given the conditions sought to be imposed by Universal Editions AG.

2. Having written about and looked into the iCrave TV affair in some detail a few years ago, I believe that is still not necessarily straightforward to “implement filtering of individuals' locations based on the IP address of visitors to the IMSLP.” Mr. Clark says “Please see for an example of this filtering.” In any event, this misses the point. If the Canadian site is not targeted specifically at and lacks a real and substantial connection with particular countries where there is still valid copyright, and if it goes to reasonable lengths to point out that copyright may still subsist in certain countries and that users in those countries should not violate such copyright, then the site would almost certainly comply with Canadian law in this case. Nothing is being knowingly sold, sent or shipped to such countries. In any event, Mr. Clark also demanded the implementation of a filter to prevent uploading any of Universal’s scores until the copyright has expired in Europe (where life + 70 applies). Anybody who has technology that can do that with scanned PDFs would be a multi-billionaire.

3. Mr. Clark’s third point opens up the perennially vexing question of copyright in “Urtext” (e.g. authentic scholarly editions). Some publishers add often trivially minor editorial changes over the course of time to make the edition supposedly more “authentic”, which also has the result of prolonging copyright claims for those who are not astute enough or content to rely upon earlier editions. The Supreme Court of Canada has discounted down to zero the value of minor editorial work in asserting claims to copyright in, for example, judicial decisions. See CCH v. LSUC, para. 35 etc. There is European law that might suggest otherwise in the case of scholarly editions of music, but I don’t believe that it would be followed in Canada, in light of CCH v. LSUC. Canada has a higher "threshold of originality" than the UK, for example. In any event, it’s not clear which editions were used of the music that’s clearly PD in Canada. And Mr. Clark's C&D letter did not make any such subtle point. It required the takedown of all of Mahler’s works - and Mahler died 96 years ago.

BTW, here’s a link to Project Gutenberg’s approach to similar C&D letters. Note, for example, the one dealing with Gone With The Wind, and Australia. And the one dealing with Herman Hesse’s Siddhartha, which is apparently PD in the USA, having been published in 1922 - but would not be PD in Canada because Hesse lived until 1962. These things can get complicated - and are respectfully not nearly as simple as Mr. Clark suggests.

Another example of where Canada will provide much longer protection than the USA is that of the early works of Irving Berlin, who outlived his own copyright in the USA by a long shot for works published before 1923.

Mr. Clark is right about Joseph Marx, assuming he is referring to the Joseph Marx who lived from 1882-1964. His music would not yet be in the PD in Canada.

Anyway, I thank Mr. Clark for his polite comments - even though I largely disagree with them for reasons such as those noted above. Here’s his e-mail of earlier today to me:

Dear Mr. Knopf,

I am the lawyer who sent the cease and desist letter on behalf of Universal Edition AG that you reference in your blog of today's date.

I would like to point out some factual inaccuracies in your blog:

(1) Our client did not request the shut down of the entire site. Our client merely requested the removal of the legitimately protected works, or the ability to prevent infringement in Europe while allowing copying to be performed by those in public-domain jurisdictions through filtering. Please see for a message from our client directly to the community reiterating that fact.

(2) It is very possible to implement filtering of individuals' locations based on the IP address of visitors to the IMSLP. Please see for an example of this filtering. You will note that the site detects that your are from Canada merely from your IP address. It clearly is technically possible to implement filtering without any personal information being divulged by the users.

(3) Many of the works that were requested to be removed are not public domain in Canada. Some may include independent editorial notation and information that grant those publications copyright extending past the 50/70 year mark. (see e.g. the discussion on the forums regarding specific works by Mahler at and with respect to their copyright status). You will note that the IMSLP organizers themselves acknowledged the copyright in Canada of at least one of these works by authors whose death date is more than 70 years in the past prior to the date of our client's demand letter. The other was debated as to the extent of the original editorial work. Other non-public domain works in Canada that were on the site are by authors who have died less than 50 years ago (e.g. Joseph Marx).

I would appreciate it if you would correct these inaccuracies.

Yours truly,

Ken Clark

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