Copyright infringement often refers to unauthorized use or replication of intellectual property. Often, the stereotypical file-sharer uses an application to download the latest albums from their favorite top 40 artists.
Note: This is an article I wrote that was published elsewhere first. It has been republished here for archival purposes
The most famous cease and desist letters (and, namely, the responses) were popularized by the BitTorrent website ThePirateBay. While the legal rumblings surrounding the latest movie or albums generate the most attention, lawsuits centering around less mainstream work is often more forgettable. There is even a smaller segment of file-sharers that share legal content. Then the question for this latest case might be, ‘Since when did uploading works in the public domain be considered a crime?’ Apparently, there are companies who do consider this an act of copyright infringement.
Many file-sharers would readily admit that there is no method of file-sharing that is 100% safe from cease and desist letters or other forms of legal pressure. One may presume that if you upload content that isn’t owned by a company or whose copyright has expired, the potential legal woes would drop to zero. It might seem like legal immunity for any online user engaged in this activity. Apparently, not so.
The International Music Score Library Project is a wiki project that posts musical scores that exist within the public domain. A wiki project is based off of similar technology as Wikipedia where anyone can contribute to it. Copyright issues on the website were a huge concern and were monitored for any possible works that could still be copyrighted. The website is similar in nature to Project Gutenberg which posts text-based works (in the form of ebooks) in the public domain for direct download and posting the works on the file-sharing network Gnutella. It seemed like smooth sailing for this Canadian website – at least until earlier this month when it received a cease and desist letter from Universal Edition AG, an Austrian publisher.
The letter explained that copyright works in Canada fall into the public domain 50 years after the author’s death. In Europe, copyright expires 70 years after the author’s death. The website itself was hosted in Canada which seems to have been recently under fire over websites that offer access or links to creative works from sites like Demonoid and QuebecTorrent. The argument was that the copyright had not expired in the Europe even though it has expired in Canada – thus constituting copyright infringement.
The letter also says, “It is our understanding that it is possible to filter lP addresses of those who take part in copying files from your site to prevent such unauthorized copyright infringement. However, we further understand that such safeguards are not in place. As a result of the lack of safeguards on the IMSLP from infringing Canadian and European copyright law, you and your organization are involved in a collective effort to breach copyright.
This is a violation of both European and Canadian copyright law.
We therefore demand that you cease and desist from offering on your web site the musical scores and any other copyrighted works of the UE Authors. These works should be removed by no later than October 19. 2007.”
In response, the website was taken offline by the owner. There’s only two things that remain on the website now, the open letter and the forums.
“At first I thought this letter would be similar in content to the first Cease and Desist letter I received in August.” Feldmahler, the former project leader of the IMSLP wrote, “However, after lengthy discussions with very knowledgeable lawyers and supporters, I became painfully aware of the fact that I, a normal college student, has neither the energy nor the money necessary to deal with this issue in any other way than to agree with the cease and desist, and take down the entire site. I cannot apologize enough to all IMSLP contributors, who have done so much for IMSLP in the last two years.”
The case will no doubt send a chilling effect to others who operate in what is generally known as free and legal works throughout the internet. The case itself resembles the case where the first works entered the public domain. That particular case was illustrated in Lawrence Lessig’s Free Culture book. Only difference between these two cases is that this present day case saw a loss for the public domain.
While particularly interesting, this isn’t the first lawsuit against online public domain projects. Project Gutenberg was also on the receiving end of public domain works. In similar fashion to ThePirateBay’s legal page (only without the ridicule), Project Gutenberg posted their legal letters and responses online for all to read.
“In this particular case, UE demanded that the site use IP addresses to filter out non-Canadian users, arguing that failing to do so infringes both European and Canadian copyright law.” Michael Geist commented on his blog, “It is hard to see how this is true given that the Supreme Court of Canada has ruled that sites such as IMSLP are entitled to presume that they are being used in a lawful manner and therefore would not rise to the level of authorizing infringement. The site was operating lawfully in Canada and there is no positive obligation in the law to block out non-Canadians.”
With this success, it’s not hard to presume that more cease and desist letters are possible in the future. Though if a Canadian public domain website decides to fight back against such a demand, it would be difficult for a would-be copyright holder to win such a case.
Drew Wilson on Twitter: @icecube85 and Google+.
