Defense Department Privatizes Giant Public Domain Media Archive

from the what-is-there-to-license? dept

Mon, Dec 23rd 2013 3:19pm — Mike Masnick

It looks like the US government is looking to lock up the public domain yet again. This time, the Defense Department is taking its vast media archive of declassified public domain material, dating back decades, of things like photos and videos, and handing it off to a private company called T3Media, which will be digitizing the content. Getting that content digitized seems like a good thing, but as Rick Prelinger tells BoingBoing, it appears that T3Media is then locking up that media with the intent to "license" it.

In exchange for covering a share of digitizing and hosting costs (the government will pick up an unspecified share of costs as well), T3 Media will provide access to the government and receive a 10-year exclusive license to charge for public access to these public domain materials.

I contacted T3Media's communications manager who could only tell me that "the material will be available for licensing." Costs, procedures and restrictions are still undecided or undisclosed. T3 will possess the highest-quality digital copies of these materials and there is no guarantee that DoD will offer them to the public online when the 10-year window expires. It's therefore hard to know whether this contract will serve the public interest.

While there's nothing illegal about charging for access to a collection of public domain material, in this case it does feel really wrong and against the public interest. Also, T3Media's claim that "the material will be available for licensing" simply does not make sense. You can't "license" public domain material, because T3Media will have no legal right over that material. It can deny access or provide access, but any license is meaningless. That means that if someone does get access to the collection, they should be able to then redistribute it freely. T3Media might try to claim that its digitization efforts create a new copyright of the work, but courts have rejected that argument. Merely digitizing a public domain work does not create a new copyright.

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Filed Under: copyright, defense department, dod, license, privatize, public domain
Companies: t3media

23 Comments

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Anonymous Coward, 23 Dec 2013 @ 3:40pm

Sad really the Internet Archive I bet would love to have that kind of access.
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Scote, 23 Dec 2013 @ 3:40pm

I think you can license PD material.
" You can't "license" public domain material, because T3Media will have no legal right over that material. It can deny access or provide access, but any license is meaningless."

The license will not be meaningless, it will be a contract. You agree to it or you don't get access to the images. The weird part will be that only the licensee will be bound to the terms because the public domain material will be legal to simply copy and use. I wouldn't be surprised if the license obligates licensees to use DRM or other measures to keep the PD materials from being accessed by others.

IANAL
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Anonymous Coward, 23 Dec 2013 @ 4:04pm

Crony Capitalism Loves Crony Government
"(the government will pick up an unspecified share of costs as well)"

What do you want to bet that cost will be "substantial"? I wonder who all in the DoD is responsible for this massive giveaway? I also wonder how many of them are going wind up with cushy jobs at T3 Media.
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Anonymous Coward, 23 Dec 2013 @ 4:13pm

Could we demand that they make the documents available to us, too, so we can digitize them ourselves? I mean in theory we SHOULD be able to do that.
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PopeRatzo (profile), 23 Dec 2013 @ 5:04pm

lines being drawn
The government sees us as the enemy. Every one of us.
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Anonymous Coward, 23 Dec 2013 @ 5:52pm

You can bet that someone associated with the DOD is profiting from this. I wonder how many resorts/dinners/kickbacks it took for them to get this through? The Internet Archive would have been perfect for this.
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out_of_the_blue, 23 Dec 2013 @ 6:00pm

Yet another panic over stuff you didn't know existed.
OMG! Now you might be able to find stuff through an index saving countless hours of random rummaging! And you might have to pay a small fee in the unlikely event you used an item! And unknown license terms that may say only you agree to enforce own copyright to stymy unlimited copying of material that cost to digitize and archive. --How in the world do you manage to howl about this?

"That means that if someone does get access to the collection, they should be able to then redistribute it freely." -- Calling for a new Aaron Swartz to "liberate data", eh? Now, listen. Digitizing and archiving plus bandwidth and officing DOES cost money. Mike is big on getting everything for free, but the real world does have "sunk (or fixed) costs". Don't go trying to download everything, kids, this is just the way the profit motive is made to provide benefits. It's far from the most egregious private deal ever, doesn't violate your "public domain" rights when you'd otherwise never be able to find items, so just pay the fee and don't sweat it: they're almost certainly not going to kick in your door enforcing any "license", just will want you to NOT STEAL all their work.
Any damn fool can copy. Copyright was put in statute to prevent greedy damn fools from profiting off what others made.

13:59:10[o-482-1]
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tomkoltai, 23 Dec 2013 @ 6:05pm

Just in case
The archives are actually full of highly classified material that people have just forgotten about because of persons being posted, dying, leaving the forces etc.
e.g.: Material about exo-planets from 1957� fascinating stuff.
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Anonymous Coward, 23 Dec 2013 @ 6:10pm

Eh, not the best solution but....
I would worry and complain about this, but I know that all it takes is 1 (one!) person to pay for the access to the public domain works and then they can put it on a torrent and all of us can get the digitized works for free. (Like we should be able to in the first place)
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Anonymous Coward, 23 Dec 2013 @ 6:33pm

Compare to State Libraries
Compare to other Institutions:

The Library of Congress and the National Archives have pretty sensible policies on use of the materials, but some state libraries and some college libraries are way behind the times.

Some libraries still think they own copyrights because they own the physical copy of an unpublished work. That aspect of common law copyright ended in 1978.

Some don't know that "perpetual" common law copyright of unpublished works ended in 2003. For example, from this recently updated Library of Virginia permissions form: "The Library of Virginia does not grant rights in perpetuity."

Some libraries don't understand that placing a work in a library and making it accessible to the public constitutes Distribution.

Some libraries don't understand that collecting the name of the user, and the purpose of the use, of a public domain work, already distributed in a public library, does not preserve the work as being "Unpublished."

Some libraries don't understand that there is no "Right of First Publication" in unpublished works which are already in the public domain.

Some libraries don't understand that their granting of permissions, for orphan works or copyrighted works, can constitute secondary copyright infringement liability, in spite of their disclaimer that the library patron assumes full responsibility.
(Anne Pearse-Hocker v. Smithsonian Institute: Count 26:
The author's permission was not obtained for third party use)

Some libraries think that a click-through "Hold Harmless" agreement attached to permissions will clear them of negligence involving secondary liability, even when clicked through by a minor.

Some libraries don't understand that the state archives in their custody are "public records," and they are restricted by Freedom of Information laws when asking for personal information and intended use of the materials.

One library thinks that archives are "reference" materials, like a dictionary or city map, therefore they are exempt from regulations.

None of the libraries comply with state privacy laws when asking patrons on permissions forms for the name of their publisher, the expected print run, etc.

None of the libraries give "notice" of what laws allow them to collect personal information, by requiring patrons to give their names, etc. when asking for copies of materials.

None of the libraries disclose a process for appealing a decision when permission to publish is denied.

None of the libraries publish a non-discrimination policy when demanding permission to publish.

None of the libraries understand that the power to grant permission is also the power to deny permission, which is the same as the power to censor using Prior Restraint.

Agreeing to illegal permissions policies is against public policy, is censorship, is against the state constitution on giving up constitutional rights as a condition of public services, constitutes an unenforceable restrictive covenant,and does not bind third parties, as copies made by the library become the property of the patron, and can be sold on eBay to the highest bidder.

.
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BS Simon (profile), 23 Dec 2013 @ 6:39pm

Re: Yet another panic over stuff you didn't know existed.
Do you even know the meaning of "public domain" or its relationship to works created by US federal employees or officers?

As to paying a fee to receive a copy of the work in the public domain. It is a regular practice to charge a nominal fee to make copies of public records. I don't think anyone would mind paying for high quality images or videos.

Personally I think the company should not both get paid to digitize and make the works available while charging for access to the works.
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That One Guy (profile), 23 Dec 2013 @ 7:20pm

Re: Re: Yet another panic over stuff you didn't know existed.
Yeah, given we're talking about public domain works, I'd say at most they should be paid for digitizing them, but being granted an exclusive ability to license them after that, for any period of time is just double dipping, allowing them to be paid twice for the same thing(and since the one paying is the government, using money collected via taxes, the public is essentially being forced to screw themselves twice over with this move).
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Anonymous Coward, 23 Dec 2013 @ 7:40pm

Case Law: Assessment Technologies v. Wiredata
Assessment Technologies v. Wiredata

This case is about the attempt of a copyright owner to use copyright law to block access to data that not only are neither copyrightable nor copyrighted, but were not created or obtained by the copyright owner. The owner is trying to secrete the data in its copyrighted program -a program the existence of which reduced the likelihood that the data would be retained in a form in which they would have been readily accessible. It would be appalling if such an attempt could succeed...

The argument for applying copyright misuse beyond the bounds of antitrust, besides the fact that confined to antitrust the doctrine would be redundant, is that for a copyright owner to use an infringement suit to obtain property protection, here in data, that copyright law clearly does not confer, hoping to force a settlement or even achieve an outright victory over an opponent that may lack the resources or the legal sophistication to resist effectively, is an abuse of process.

.
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RD, 23 Dec 2013 @ 7:52pm

Re: Yet another panic over stuff you didn't know existed.
"It's far from the most egregious private deal ever, doesn't violate your "public domain" rights when you'd otherwise never be able to find items, so just pay the fee and don't sweat it:"

Yeah, because media companies are ALWAYS so reasonable about their licensing fees, and about licensing things at all. Its not like Big Media charged Netflix $300 million for licensing for streaming, then increased it TENFOLD THE NEXT YEAR to 3 billion, or anything like that...
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G Thompson (profile), 23 Dec 2013 @ 10:19pm

Re: Eh, not the best solution but....
1 person might not have the wherewithal either financially or legally (even though they would have an absolute defense the bullshit in the US courts would be daunting).

Though crowd funding this could be a way to actually purchase a license (which isn't a license at all but would be more likely a contract) then totally forfeit that contract by releasing the whole content into the public arena NO FEE (torrent is just one avenue).

The courts could NOT close it down, DMCA's would not work since the content is NOT copyrightable (ie: NO ONE has a claim on it legally), and the only legal avenue that T3Media might be able to take is via contract forfeiture which would be highly problematic, and cause them more problems (if they won anyway.. and having the crowd source done through another country would instantly render most court routes moot too)

This most likely is NOT going to work out well for T3Media nor the DoD.
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Anonymous Coward, 24 Dec 2013 @ 6:53am

Re: Yet another panic over stuff you didn't know existed.
Isn't this your own definition of a leech? They didn't create this stuff, they're just licensing someone else's work.
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Anonymous Coward, 24 Dec 2013 @ 7:08am

so who owns T3Media is the question that should be asked
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Me, 24 Dec 2013 @ 7:24am

This is bullshit.
This sort of issue is right up the alley of:

https://public.resource.org/
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jupiterkansas (profile), 24 Dec 2013 @ 8:27am

Isn't digitizing its own archives something the government should be doing itself?
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Anonymous Coward, 25 Dec 2013 @ 7:20am

Re:
"Isn't digitizing its own archives something the government should be doing itself?"

Yes, they should.

Someone needs to create extension like RECAP (https://www.recapthelaw.org/) for court docs at PACER,
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Anonymous Coward, 30 Dec 2013 @ 8:51am

Re:
seconded
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Anonymous Coward, 30 Dec 2013 @ 8:58am

Re:
www.linkedin.com/pub/kevin-schaff/0/5/443
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Pragmatic, 3 Jan 2014 @ 6:44am

Re: Re: Yet another panic over stuff you didn't know existed.
Cathy's views on what constitutes grifting changes like the wind. Note that she's not wailing on corporations stiffing the little guys, as she often pretends to do. This is because she's a corporatist at heart.
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