Dear Aaron Dunn (founder of Musopen),

My gripe is pretty simple:

You have a website dedicated to giving away music that is in the public domain. Some of the music on your website is not in the public domain. It belongs to people, who should be getting paid when it is downloaded. You have made almost no effort to prevent this, and you hide behind an absurd interpretation of a law you don’t understand in order to justify your continued inaction.

Let’s start with the public domain. Authors are entitled to copyright protection for a period of time, after which their work becomes free for anybody to reproduce. Copyright terms are a bit confusing, but if you want to know if something is free in the major markets, it works like this:

You could ask users a few simple questions about a recording to establish if and where the copyrights have expired. The users would need to know the answers to these questions to determine the copyright status of the music themselves, so why not collect the facts and figure it out for them? Ask them if they composed and recorded it, and if not, when it was composed, when it was recorded and when the composer died. That’s it. That’s all you need to know.

In the past, though, that isn’t what you’ve done. You’ve assumed your users, many of whom have no reason to understand international copyright law, will accurately determine the legal status of the files they upload. This is daft.

As a result, well-meaning members of the public can unwittingly use your website to infringe copyright, reproducing music when the composers and/or performers are entitled to get paid. You label copyright music as public domain, which will encourage people to share it again, and you don’t even have a button to report infringing content – just a link labelled “DMCA” at the bottom of each page.

In the past, when I’ve pointed out that there’s copyright music on your site, you’ve responded thus:

“We could not be protected by the DMCA if we actively looked for music that infringes.”

This was in May 2012.  I know you’ve told other people similar things. When you first told me this, I thought “Wow. That’s a messed up law.” Now that I’ve read the DMCA (Digital Millennium Copyright Act), and I know this isn’t what it says, I’m quite disappointed in you.

Here’s how the DMCA works:

If you operate an online service where people can upload content, you’re protected from getting sued over copyright infringement in the US so long as:

1) You take down content when people send you a correctly formatted takedown notice

and

2) You don’t ignore any completely obvious infringement

There’s a load of other waffle about DRM and ship designs, but that’s pretty much what the law says. You can read the whole thing here, if you’re interested. You probably should, since it’s the only thing standing between you and and getting sued by a lot of music publishers. When you read it, you’ll see, as I did, that it does not anywhere tell you not to look for infringing content, or not to take common-sense steps to prevent it getting uploaded in the  first place.

Historically, the courts have been very reluctant to find people guilty of infringement on the grounds that they’ve ignored so-called “red flags”. At times, though, you’ve collected (and displayed) data showing that the copyright on a composer’s work cannot have expired. Here’s an example.

If this piece of music was not published until 1943, it’s in copyright in most of the major music markets. If the composer didn’t die until 1953, then everything he wrote is in copyright in the UK, and anything he wrote in the last thirty years of his life is probably in copyright in the US.

This is what a red flag looks like, and by ignoring three of them, you’re pretty much asking for a music publisher to sue you.

When one of them does, it won’t be because they’re attempting to impose outdated hegemony over the artistic output of the long-dead composers whose legacy they cynically exploit for financial gain, but it’ll be because you made it easy for people to steal from them, and because you forced them to waste time policing the website you’re too lazy or incompetent to properly run, when those very same publishers could have spent their time promoting the music of living composers.

I’m all in favour of free music. Where copyright doesn’t apply, I’m happy to use and support services that disseminate creative work. Authors should be free to give their work to public if that’s what they want, but they should also be free from the threat of piracy sponsored by a tax-exempt organisation.

The people who donate through your website and contribute to your Kickstarter campaign(s) deserve the assurance that their money goes to support liberation, and not theft.