May 18, 2007
Is the Smithsonian Claiming False Copyrights?
Intellectual property junkies, and we know you're out there, have another case to salivate over. As the Examiner AP reports, the Smithsonian Institution, which houses over 6,000 images of its historical treasures in a publicly accessible online database, got the IP version of a shot across their bow from Public.Resource.Org, which recently downloaded every single photograph and made them available on its Flickr stream.
What's the problem? The Smithsonian claims it retains any "possible copyright" on these each of these photographs and states that people may not copy or redistribute them for any reason. Anyone trying to download an image must click through these disclaimer pages to get a low resolution, watermarked image, or pay $100-200 for a high resolution image via an FTP site. Public.Resource.Org, a recently created non-profit that vows to cut the red tape that curbs the flow of information between the U.S. Government and its citizens, is calling foul on the Smithsonian's claim of copyright. According to the organization's memo to "The Internet," the Institution, being funded through federal resources and chaired by the Supreme Court Chief Justice, falls under the law regarding copyrights as they apply to the Federal government. Which is to say, there isn't any -- according to the U.S. Code, "Copyright protection ... is not available for any work of the United States Government." (The memo is worth reading in full for its discussion of the Smithsonian as a federal institution versus a "trust.")
Public.Resource.Org argues that the page of legalese, in addition to the somewhat cumbersome process it takes to download each photo (pages of click-throughs), discourages the use of these images by citizens who should be free to use this public resource. And not only that it might scare off laymen, but that it is trying to create rights, if not by copyright, then through contract law -- that by clicking to download, you've implied your agreement to Smithsonian's terms.
The Smithsonian hasn't given a public statement yet, saying only that their attorneys are looking into the accusation, and, we'd imagine, a possible injunction against Public.Resource.Org's dissemention of their images. What do you think? Has the Smithsonian unjustly claimed copyrights to their photos? Is Public.Resource.Org doing a service for the public in making them freely and easily available with no strings?
Photo from Public.Resource.Org's Flickr site. Image of SI Neg. 2000-10034. Date: na...Overhead left view of a United States Army Air Forces Consolidated B-24D Liberator (s/n 41-11717), Credit: Unknown, from Smithsonian Institution.
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The Examiner didn't report that. The AP did.
Ah, yes, duly changed.
The Smithsonian loses more credibility every single day.
And those low-resolution images aren't worth shit. Nobody's going to put one of those on a t-shirt and profit off of it.
I'm all for public use of stuff, but the Smithsonian is so awesome and has so much cool stuff for free. Why are people giving them crap for trying to make a buck when they are underfunded already by the people in charge? This is just another example of people feeling entitled to things just because they feel like they deserve it for some reason, and they already have it so good.
What is this all about?
http://smithsonianimages.si.edu/siphoto/siphoto.portal?_nfpb=true&_pageLabel=detail&negNum=92-14199&action=detail
Just fyi: although the Smithsonian "holds" items for the public trust, that just means that they own the physical item. This DOES NOT mean that they hold copyright for redistribution and display. So, first of all, don't assume just because it's on the Smithsonian site that it's copyright free to all of us.
Second, there is a LOT of work that needs to be done in museums and taking the time to scan stuff, burn cds, post it on the web adds up for the already underpaid, under-appreciated, overworked collections staff that typically handles this stuff. Sure it would be nice if it were free, but you already get to go to the museums without admissions (which is NOT the norm in this country). If you want more services from an already overtaxed, mismanaged institution, donate money specifically to collections and/or call your congressman and ask for oversight without lower-level budget repercussions.
Seriously, it seems like everyone expects cultural institutions but they don't want to pay for them!
PS Just to clarify, I do agree with the initiator of the suit that the Showtime deal was NOT cool. And that photographs of artifacts within the collection if taken by a contractor or an employee of a federal institution cannot retain copyright... I think the issue is more about the Smithsonian gaining some revenue and wages for time lost providing these items. Sorta like that mysterious "handling" part of a the shipping and handling fee. And yes, full disclosure, I work in a museum.
The question isn't whether the Smithsonian is a worthy institution, or whether it needs more money, or how overworked its staff is, the question is whether we should allow the Smithsonian to create a virtual copyright on things that are quite clearly not copyrighted.
It's one thing to charge a reasonable fee to reflect the costs involved with the scanning etc. (analogous to paying to use a copier at a library) (and 100-200 per print is not reasonable in my opinion) it's a totally different thing to restrict the subsequent usage of that material. Simply because it's a sympathetic actor does not change the underlying distastefulness of using contract law to create a virtual copyright in contradiction to the intent of the law.
Not that I'm necessiarily taking sides, but this paragraph was interesting to note, from their memo:
Copyright law is copyright law, and if it's shown that the Smithsonian is, in fact, considered a federal institution, then Public.Resource.Org's argument that they shouldn't be claiming IP rights is a valid one. The issue of lack of funding seems to be a separate problem, and not one SI should bring up to justify rights they don't necessarily have under federal law.
Just like in that first quoted sentence here, Smithsonian enjoys a lot of rights due to their public status - just think what a ridiculous mess of corporate advertising it could be come if it were privatized (even more so than it already is, like the Showtime deal, and many other situations we've reported here in the past). Seems like it's tough to claim "we're public, keep the corporations out," but then claim not to be when they're trying to finagle rights they don't have.
If the Smithsonian is falsely claiming copyright, I wonder if it's subject to United States Code 17-506(c), which states, "Fraudulent Copyright Notice. - Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $2,500."
The bottom line is that KwM is correct: SI is housing these photos _for_ the original copyright owners (likely under a non-exclusive license agreement), and its very likely that the owners in many of these images still maintain a valid copyright interest in the photographs. Copyright doesn't vanish just because the gov't is using the work in question, only if the gov't creates the work.
The main crux of the popup says:
"The Smithsonian Institution specifically retains any rights, including possible copyright, which it may have in these files, and/or the images they contain."
This isn't creating a virtual copyright; it may actually be legitimately owned by SI in their capacity as a "trust intstrumentality":
From the fantastic www.cendi.gov/publications/04-8copyright.html#232 website:
3.1.2 Is a U.S. Government work provided copyright protection?
In the United States, U.S. Government works are covered by 17 USC § 105.59 "Copyright protection … is not available for any work of the United States Government, but the United States is not precluded from receiving and holding copyrights transferred to it by assignment, bequest, or otherwise."
Could the document be reworded? Yes. I for one, would actually document those works that have lost copyright protection. They are, and will forever be, in the public domain, no matter how much "sweat of the brow" work SI does to make them available.
One additional thing:
The Smithsonian is a "trust instrumentality of the U.S.," making them a quasi-governmental entity. Because they utilize two funding sources--a private grant and public funds--not every work created is necessarily a governmental work. Works created from the private grant money are copyrightable; works created with even a dollar of public funds however, are not.
IANAL but I do know that while the Smithsonian is a Federal Entity, the Institution does not have to follow every federal rule or regulation.
In truth, the Smithsonian has a board of trustees that work with Congress to determine whether the Smithsonian's special status requires them to comply. Suprisingly, most of the time, the answer is no but the Smithsonian chooses to comply anyway.
This looks like a case where the issue hadn't come up before so the precedent hadn't been set.
"psst, it's 'dissemination'"
Hey. What can I say? I get excited when I start talking about copyrights ;-)
The Smithsonian is not willing to spend the time or money needed to establish which of the photos it is offering online were created on contract for the government (and thus in the public domain) and which photo copyrights are owned by others who have entrusted the photo objects to the Smithsonian for safekeeping. Even in the latter case, is the Smithsonian the authorized agent for the copyright holders, collecting fees on their behalf?
I'm the only one on my block who isn't a lawyer, but in my opinion, current Smithsonian practice is not a good recommendation for a trustee, public or otherwise.
Archives and other public repositories (city, municipal, federally funded libraries) get donations and accessions that may include materials that still have a copyright owned by someone else. The donor may allow the public entity to have the physical item and limited publication use but retains their rights. That's the cleaner version. The messy versions that I usually encounter is the donor donates stuff that includes material they don't own the copyright to and they can't tell you which is which. Then there are things the government contracts out and the copyright is still held by the private bodies creating the material and no one bothers to clarify the copyright ownership. Also some institutions have trust fund bodies that act like private institutions to raise money for functions that won't be funded by the government. These trust fund bodies grab what crumbs they can with xerox copy fees and copyrights granted from donors to the trust fund.
Don't always assume the copyright is clean.