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:

Public Domain

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


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.

Prokofiev on Musopen

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.



Post a comment
  1. Jonathan #
    October 4, 2013

    The piece you mention “is public domain in Canada and in other countries (China, Japan, S. Korea) where the copyright term is life+50 years.”

    Do your research before throwing around accusations in public.

    • October 4, 2013

      I’ve changed “just about everywhere” to “most of the major music markets”. If you’re selling recordings of Prokofiev, the US and EU (and Russia) is just about everywhere. Similarly, if you’re operating an online music service in English, the EU and US are your big sources of traffic. Canada and Australia together make up a small percentage, but still bigger than Japan and China.

  2. Jonathan #
    October 4, 2013

    This is why the DMCA exists, report it to them and then see if they remove it or not

    • October 4, 2013

      DMCA takedowns have to be filed by the copyright owner.

      If the site were responsibly run, this shouldn’t have been uploaded in the first place. Now that it has, there should be a mechanism for people other than the copyright owners to point out that it isn’t PD, and until there is, the people running the site really ought to make the effort to check on the most glaringly obviously dodgy stuff, because if I can find it this easily, so can they.

  3. October 23, 2013

    Their DMCA page is a lot of stuff about all the very specific info they require from someone authorised to act on behalf of the copyright owner, along with this: “Failure to comply with all of the requirements of 17 U.S.C. § 512(c) may render your notification of alleged infringement invalid.”

    Which I feel is definitely one of those logical fallacies. Just because the notification was filled out incorrectly doesn’t mean they’re not pirating music.

  4. Good old Grim #
    November 5, 2013

    Prokofiev is definitely free of threat of piracy. Some publishing company might not be, but only if they are cynically exploiting the legacy of a long dead composer for personal gain.

    Honestly, copyright extending so long after composer’s death is bullshit. The only reason those laws are in place is lobbying by the record companies.

    • November 25, 2013

      In the case of compositions, it is publishers (and composers), not record companies, who gain from long copyright terms. Record companies have to pay publishers when they record copyright works, so they enjoy higher margins on public domain compositions.

  5. CRConrad #
    November 25, 2013

    Funny; don’t you see the hypocrisy of the system, even when you’re posting it yourself?

    You write: “Authors are entitled to copyright protection for a period of time…” — and then you put up a nice graph that clearly shows how pretty much everything after 1922 is “probably” copyrighted and, conversely, close to nothing has entered the public domain for over ninety years.

    That’s not really “for a period of time”; that is, in practice, pretty much for ever.

    Look up “rent-seeking”, whydoncha.

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