DIAMM and IMSLP

[Carolus]

Here is a question raised by both Feduol and by Andrew's response: Why does the presence of PDFs on IMSLP have to result in DIAMM's shut-down? What exactly are the Spanish libraries so terribly upset about here - apart from what they fear might be a breach of an agreement signed by DIAMM with them? After all, it is not IMSLP who contacted DIAMM and demanded that they take things down. We're actually quite unhappy that DIAMM felt compelled to take these items down. Are the holding libraries afraid of the folks who copy tons of files from IMSLP and sell them in DVD collections on Ebay? This happens all the time, by the way - which is why I am constantly warning composers of original music who post their work here to choose a more restrictive version of the CC license than the plain-vanilla variety (cc-by 4.0), which at least gives them a leg to stand on if they discover some character on Ebay hawking their piece along with 10,000 others. I could certainly understand if this was a concern of the libraries (and DIAMM's). For example, would our changing the copyright tag for the EU from public domain to something like Creative Commons Attribution Non-commercial 4.0 satisfy the offended libraries and allow DIAMM to continue as before? Putting the items under a non-commercial license for the EU would improve the prospects of shutting down such impromptu Ebay vendors if that's what they are terrified of.

[AndrewHankinson]

As I understand it, the presence of PDFs on IMSLP means that publication-quality images are now distributed outside of DIAMM, and therefore libraries, who have negotiated to maintain their restriction on publication, have no way to centrally manage how and where these images get published. Some of these libraries, especially those that hold popular manuscripts like the Eton Choirbook, depend on this income to support the cost of maintaining the objects in their collections: staff, equipment, etc. Not all of these libraries are state-supported, and even some that are state-supported barely get enough support to keep their doors open. This revenue stream is an important component of just keeping the doors open and the lights on. Absolutely nobody is lining their pockets here. This is a matter of survival. They don't have enough money to pursue legal action for "Ebay scammers", but they certainly do have a means of controlling access to these images before an image is captured.

If you're on-site and you want to create a publication-quality print, you will have to pay before you can take a single picture. You might even have to pay before you go through the door. DIAMM has thus far managed to strike a compromise with them in that they can make these images available online for consultation, but the libraries won't lose this income stream for individuals looking to sell items with images of their objects.

(If you really want to understand more about this, you should read the "Copyright and Citation" page, which spells out exactly why DIAMM has to maintain this position. Namely, DIAMM is making these images available as a courtesy and a service, and they serve at the whims of the libraries.)

So DIAMM didn't "feel" compelled to take them down, they *were* compelled to take them down, or risk legal action and/or loss of access due to not holding up their end of their agreement with that library. In these agreements, the images are made available on the DIAMM website by courtesy of the libraries. I'm sure if they really wanted to fight them in court they might be proven that they have a "right" to keep them up on the site, just as you are claiming, but at what cost? It would become a matter of physical access to all libraries, and the very real possibility is that DIAMM will find themselves staring at closed doors when they want to come back and digitize more of the collection. Word will spread. You can keep what you have, but you can't have any more.

For the bulk of its collection IMSLP can depend on some library having an item because there are multiple copies. One out-of-copyright print edition is as good as the next. You are even supported by some of the great libraries that have made their rare works available on your site because they think that's a good thing to do (like the Beethoven Haus scans). You can crowdsource this out, and many will contribute, out of a sense of good will or altruism.

However, you may be taking this for granted. If the Beethoven Haus wasn't the type of organization that believed it was good to put the Beethoven manuscripts online, would you have them? If the Bibliotheque Toulouse didn't contribute their copy of a Bach MSS, would you have this? For manuscripts you can't always depend on just the "build it and it will come" approach to crowdsourcing. These are one-of-a-kind items. Maybe some day, someone will be able to snap a few photos of a page when someone's back is turned, but if you really understood what DIAMM has (fragments, incomplete parchments, works that will crumble to dust if you handle them wrong) you would understand that actually seeing these objects is a very rare occurrence, and the ability to consult them in your own home is a luxury.

Changing the license doesn't change DIAMMs position. If you keep the images up on the IMSLP site, the libraries will see this as "unauthorized" distribution and demand that DIAMM stop making them available, and they will be compelled to remove them. Sure, you will get to keep those images that you have now. You've very clearly stated that you believe you have a "right" to keep them, and I don't know enough about the law to argue against this. And you now what? You might even win legal action, and be assured that you're carrying out your mission of protecting the public domain. Like the Ebay sellers in your example, you have every right to do this since you're not breaking any law, but it's actually a pretty mean thing to do, especially to an organization like DIAMM that is actually fighting for the same thing you are. When the dust settles and you go away, those who built DIAMM will be left picking up the pieces and starting over. The next time DIAMM approaches an organization with an agreement that doesn't allow them to maintain their on-site revenue stream, they'll say thanks but no thanks and show them the door. And that's a loss for everyone.

[Melodia]

Andrew, I think Feduol said it best and a couple others before him as well, but allow me to reiterate -- why should an exception be made for DIAMM? Yes it might be the right thing to do if you look at it from your standpoint of "it'll placate them and allow even more"....but it's be a TERRIBLE thing for the IMSLP. Because it really creates a slippery slope -- why should one example of PD be taken down but nothing else? The site was shut down for a while shortly after it was founded because a publisher tried to bully it out of the site despite it all being fully PD. In the end the site came back and exploded into the massive archive we have today.
The point is, just think how it looks -- one small section of music is forced out because someone else doesn't like it there, it actually COULD create a precident, as it were. The fallout could very well be bad for the site.
And in the end, it's really not IMSLP's responsibility to care about agreements made by third parties.

[Olivier]

I think one important thing that's missing from the FAQ page of IMSLP and that would be very useful for the administrators, is the mission or the aim of the project. Is it:
* Making as many scores as possible freely available on IMSLP
or
* Making as many scores as possible freely available to the people

That distinction would help you decide whether there is a difference between Universal Editions and DIAMM...

[GregSkidmore]

Melodia, why should some material you believe to be in the public domain be taken down and not other material? Precisely because there are good reasons for you to do this. Andrew and others have articulated these and it seems you are not interested in them.

IMSLP can act as a machine (without any sense of understanding or willingness to accept real people on their terms) and run the risk of angering many and stifling research and access or it can participate in a wider community of musicians and scholars as though it were a person, listening to wider arguments, compromising, accepting that it's interpretations of the law may or may not be infallible, and understanding that allowing anyone to decide whether something is in the public domain or not is not the best way to respect all the various stake holders in the community.

Keep in mind: as for as I know, DIAMM's specific legal claims haven't been tried in court. (i.e. They haven't been to court.) You think you know what the outcome of such a trial would be, but you surely have no LEGAL basis for this confidence, as this specific situation has no precedent. (Images of music manuscripts held in private libraries taken by professional third party photographers under license, bla bla bla). It's a game of brinkmanship. You're convincing yourselves you're legally right, not listening to any non-legal argument, inflicting harm on DIAMM and it's users in the process, convincing yourselves that the harm they are experiencing is not your fault, and daring DIAMM to take you to court. Is this how we deal with one another in a mutually respectful, positive community of music lovers?

[NMTB]

@Melodie: I don't know why it would be such a terrible thing, in fact IMSLP would take its social responsibility for keeping access to medieval musical manuscripts open to all. I think the admin team of IMSLP has a choice here of whether to go with a grab-whatever-you-can-mentality, or with something a bit more responsible, and I think the latter can only work out for the best.
And - allow me to reiterate - let's keep in mind that we are dealing here with materials that are actually only useful to a rather small group of people. Researchers seem to be fine with DIAMMs conditions, and musicians who want to perform that music know how to deal with it as well. In fact everybody I've spoken to much prefers keeping free access to the whole of DIAMM than having snippets of it on IMSLP, and the rest disappearing off the internet altogether.
In fact what happened here has outraged quite a lot of people, simply because their research has been impeded. "Feduol" has been banned from several musicological forums, because people - including myself - do not feel safe talking about unpublished research around someone they see as not having any respect for intellectual property. In other words freedom goes with responsibility, and some people haven't used theirs in a way that can be called prudent nor wise.

[Notenschreiber]

What about the following compromise. The "DIAMM files" stay on their workpages at IMSLP, but with TB status (temporalily blocked). On this workpages are links to
DIAMM, so that the files can be used via DIAMM. An explanation about the very special reasons about the blocking of public domain files can be installed on every
workpage. Then let´s see, if there is any effect to the complaints of the libraries. If DIAMM will be able to use the files in full extent as before, the files on IMSLP
should remain blocked as long as they can be used for free via DIAMM. Otherwise IMSLP can unblock these files.

[AndrewHankinson]

Notenschrieber: That sounds like a great idea to me!

I think a compromise for the moment might be for IMSLP to be a "dark archive" -- holding, but not distributing.

Would that be possible?

[AndrewHankinson]

Melodia: And if you're late paying a bill because a member of your family is sick, why should XYZ Corporation make an exception for you when you call them and plead for a bit more time?

It would be a sad state of affairs for IMSLP to be in the same league as Bell or British Telecom or AT&T, a faceless corporation that applies the rules and damn the actual consequences because of the attitude "why should I care? it's not my problem." Surely you don't actually mean that.

[imslp]

Notenschrieber: That sounds like a great idea to me!

I think a compromise for the moment might be for IMSLP to be a "dark archive" -- holding, but not distributing.

Would that be possible?

I've been thinking about this as well, but there are a few terms that we will need for us to consider this further:

1. The files currently available will remain available - IMSLP will not by its actions restrict access to any public domain material currently existing on IMSLP
2. DIAMM will have to proactively submit the files to be held in escrow by IMSLP (i.e. the ones that are not currently on IMSLP)
3. In the event DIAMM disables free access to any of the images at any time, IMSLP will immediately have an irrevocable right to make such images available on IMSLP as public domain material
4. The agreement will terminate and all the files will be fully available and accessible without restriction as public domain material on Jan. 1, 2030

The reasoning for these terms is very simple - we need to make sure IMSLP will not simply block access to items just because there is a dispute (we get them all the time). This cannot be a one-way street - DIAMM needs to provide something substantial for this to work.

Frankly, even with the above terms I'm not entirely comfortable, but IMSLP is willing to consider it.

Also, a couple of notes on the discussion:

• Melodia's post, among others, has hit upon my biggest fear. We cannot start on this slippery slope, or there will end up being nothing left at some point. This is why I am insisting on the terms above. This is also precisely the reason back in 2007 I took the entire site down rather than suffer to see the inevitable downfall of IMSLP by caving in to UE and removing the few files.
• And the slippery slope problem is also why I emphasized IMSLP as a machine. A machine has no emotions, so it cannot go down a slippery slope. Good.
• Also, as I've mentioned before, the mission of IMSLP is very simple: as guardians of the musical public domain. If you put a public domain item on IMSLP, we will defend it. That is all there is to it. What consequences there are are purely tangential to the core mission of IMSLP.

[imslp]

Melodia: And if you're late paying a bill because a member of your family is sick, why should XYZ Corporation make an exception for you when you call them and plead for a bit more time?

It would be a sad state of affairs for IMSLP to be in the same league as Bell or British Telecom or AT&T, a faceless corporation that applies the rules and damn the actual consequences because of the attitude "why should I care? it's not my problem." Surely you don't actually mean that.

This is a good question. The answer is that there is a subtle but very important difference between that situation and the current one.

It has to do with externalities. If you are late paying a bill, the only entity to whom there is a detriment is the Corporation. All externalities (both negative and positive) arising from the event are internalized by you and the Corporation. But the public domain is the exact opposite - the externalities arising from a give or take to the public domain covers the entire world population, albeit spread thinly. This is why the public domain has always been an underdog - it is rare to find people passionate enough to defend it, unlike copyright owners. But why do we still have the public domain? Because its cumulative benefit is enormous if you sum together the benefit to every single person in the world, and that is what the law is recognizing.

This is also what makes our role as guardians of the public domain even more important.

[AndrewHankinson]

So you're willing to sacrifice the greater public good just because you want to be a machine?

There is no slippery slope. I'm sorry, but you're not a machine. IMSLP is a bunch of people. It doesn't have a legal mandate to act as a copyright defender. It might see it as its core mission, but that's different. You are "guardians of the public domain" only because you proclaim yourself to be. It's a self-imposed mandate.

You are free to do what you want. You have no laws demanding that you must do this, in the form of legislation and a legal mandate. However, you can exercise judgement in a case-by-case basis, not blindly apply your interpretation of the law BUT understand that there are situations where some lenience and savvy are necessary, and work with us. There is no slippery slope unless YOU create it and foster it. If another individual comes along with a valid argument, you can hear them (just like you are hearing me) and make a decision. If you don't want to be bothered with the time and effort it takes to negotiate and listen, and just apply rules out of convenience and expedience and fear of some "slippery slope" that would ultimately be of your own making anyway, then you are doing more harm than good despite your best intentions.

I'm saying that your current actions are hurting the greater good, and asking that you stop because your actions are hurting the people who care most about these items in very real and tangible ways.

You have placed yourself in this position. If you don't want to have to deal with the messiness and actually work with people and exercise judgement, instead of demanding that it's your way or the highway, then I have to question your ultimate motives. Like Olivier asked, is your goal to have everything on IMSLP, or is your goal to have everything available to the people? There's a very real difference, and you haven't addressed this question.

[Olivier]

Isn't it a problem if the actions of "guardians of the musical public domain" prevent access to part of the "musical public domain"? When public domain scores stop being accessible? When the very concrete possibility of making other public domain scores accessible is jeopardized?

[imslp]

If the scans were being treated as public domain material we won't be having this debate in the first place.

[Olivier]

Neither if the owners of the manuscript had decided not to let the scanning happen...