Klaus Graf was the first to bring to my attention the work of the new group Public.Resource.Org and their effort to "liberate" public domain images. This effort addresses many of the same issues that were under consideration in the lawsuit against the Berkeley Historical Society so ably discussed in an earlier interview with the BHS's former director. The key issue is whether an repository can attempt to use its ownership of public domain material, combined with contract law, to control subsequent use of reproductions of the material.
This is an important question and is going to be the focus of an interesting session at the next meeting of the Society of American Archivists in Chicago. I have some preliminary thoughts on Public.Resource.Org's arguments and the issue after the break.
First, as anyone who has read my paper "Archives or Assets?" knows, I think it is a losing proposition for repositories to try to control subsequent use of material. In that regard, I am in complete agreement with the arguments in the open letter to the Internet from Public.Resource.Org that question whether attempting to control images from the Smithsonian's collections is compatible with the Institution's mission. Thinking about "mission" in part led Ken Hamma to call for a true public domain in his seminal paper "Public Domain Art in an Age of Easier Mechanical Reproducability," and questions of mission (and not just money) should help guide any digitization project.
A key concept in both papers, however, is the hope that institutions will come to realize that an open access policy to public domain works supports institutional missions better than attempting to exert control. The Public.Resource.Org group have taken it upon themselves to make this decision for repositories. An interesting question is whether their actions are legal.
Of the almost 7,000 photographs in question, some may have been taken by government employees, but some are likely to have been taken by photographers working for the independent Smithsonian Trust. It seems likely to me that if the photographers do not get paid by a check that says "US Treasury" on it, they are unlikely to be considered to be government employees and their works are not likely to be considered to be "works of the United States Government" (as defined in Section 105 of the Copyright Act).
But let's assume that the images are all in the public domain. Can the Smithsonian still try to control them? Their copyright information page says that the images "may be protected by copyright and other restrictions as well" (emphasis mine). If you read the rest of the page, it is pretty clear that Public.Resource.Org is violating one of those other restrictions - namely the agreement with the Smithsonian that they entered into when they accessed the photographs.
Much as I would like to see the Smithsonian make the images freely available for everyone, I can't condone someone who agrees to do one thing and then does precisely the opposite. I might loan someone my car on condition that they do not drive it outside of Ithaca, NY. If they then drive to New York City, I am going to be mad - and I might think about bringing action.
In some ways I hope that the Smithsonian does bring legal action against Public.Resource.Org because there are a number of interesting questions at play that would be good to get settled. For example, do the terms on a web site create a binding contract? Most commentators seem to think that shrinkwrap and click-through licenses do, and there seems to be more support for the enforceability of "browse-wrap" licenses. And can you use contracts to create copyright-like restrictions on a one-off basis, even on works in the public domain? Mary Minow's comment on the BHS case posting is a great summary of current legal thinking, but everything I have read suggests that what the Smithsonian tried to do is legal.
Again, I wish the Smithsonian didn't try to assert control over its images. And while I think that Public.Resource.Org crossed the line, it is ridiculous that anyone else can now take any of public domain images Public.Resource.Org has distributed and do whatever they want with them. (Any contract limiting use of the images can only be between the Smithsonian and Public.Resource.Org.) That is just one more reason why repositories should focus on providing good services to users, rather than attempting to establish monopoly control over images from their holdings.