Smithsonian Copyright Scheme Challenged

Public.Resource.Org has decided that the Smithsonian Images Web site goes too far in its copyright and contract language such that public domain material is restricted and that use of the material would be chilled. As part of Public.Resource.Org’s efforts to evaluate the Smithsonian’s approach, the group claims they showed the National Air and Space Museum copyright language which includes the phrase “‘even in the absence of copyright, Smithsonian still reserves all rights to image use.'” to  Yochai Benkler who apparently “wrote back that the unilateral and unequivocal claims were ‘nonsense on stilts.'” To remedy this problem, Public.Resource.Org, took particular action. As they put it:

1. We downloaded all 6,288 images, scraped the metadata from the html pages, and embedded the metadata in the .jpg headers. These images are low-resolution and contain a watermark, and were all previously available on-line.
2. The images were uploaded to Flickr, a popular photo sharing site.
3. The images were loaded into 262 contact sheets and formatted with a cover for printing as an e-book. The book is available for free download or a printed copy may be ordered.
4. A tarball of the images was created and is available by download by ftp or http.
5. Three of the high-resolution, non-watermarked images of Muybridge Cyanotypes were purchased, and a series of derivative works were created and posted. [http and ftp] (Editor’s note: the post gave the links in full but they are embedded here).

I suppose that the issue is whether the holder of the physical thing (here a picture) can impose extra limits on the use of that thing. I think the question becomes complicated rather fast, but one thought is that there may be a distinction between a public entity (which, as Public.Resource.Org notes, the Smithsonian is) and a private entity’s ability to use contract in this way. More generally the conceptual problem seems to relate to the discussion about Mark Helprin’s NY Times Op-Ed. So a series of questions arise. Does intangibility change the analysis of the amount of control? Adam Mossoff and James Grimmelmann in his post about the Helprin piece seem to hold that intellectual property is property regardless of tangibility; Frank’s post on the topic looks at how intangibility alters the analysis. In addition, does control split between the intangible and the tangible aspects of the item at issue? Thus if one controls access to the sole public domain item, can one say “I grant you access, but in exchange you agree not to quote or use the public domain material within the item at all or only use it as I dictate.”? As Robert Brauneis of Georgetown law put it “‘It’s not clear to me how it would make sense to say this photo is not under copyright and yet we own it and you can’t use it, … Contracts can sometimes go beyond copyright law, but exactly how far and when is not completely clear.'”

On a related note the images debate reminds me of the Showtime deal that the Smithsonian struck to create Smithsonian on Demand. That deal also limited access and use of the Smithsonian’s public materials. For those unfamiliar with the deal, about a year ago the Smithsonian entered a deal with Showtime Networks which gave Showtime some rather broad rights. The deal limited the public’s ability to use the material with some rather vague language, and criticism from EFF and others followed. Then Patry’s Blog noted  that it seemed that government responded to slap down the deal and had perhaps moved to prevent deals that cutoff public access and reduced Smithsonian “salaries and expenses account by $5 million.” Nonetheless the GAO reviewed the deal and apparently found that access was not restricted and the Smithsonian On Demand/Showtime deal seems like it is moving forward. (I tried to find details on the Smithsonian Networks Web site regarding how one may obtain permission to use the material but the site seems to lack anything other than an FAQ to address the question: “If I am a filmmaker and I want to submit a proposal to Smithsonian Networks, how do I do that? Send a short email to programming@smithsoniannetworks.com and you will receive information back on how to submit your proposal.” Bleak.)

Whatever the outcome, the Smithsonian seems to need or want money and is using the archive to get it. Perhaps this one is handled most simply by funding the museum a bit better. At least one account argues that the money generated by the Showtime deal (est. $150 million over ten years) is roughly 13 hours of funding the U.S. presence in Iraq.  Still as Public.Resource.Org details the Institute has made money from the archive without imposing overreaching limits on public domain materials and should stay with that approach.