Monday, April 03, 2006

Smithsonian Showtime Agreement

The New York Times had this article on Saturday, by Edward Wyatt, which I reproduce in its entirety in order to give the discussion its proper context and understanding:

Some of the biggest names in documentary filmmaking have denounced a recent agreement between the Smithsonian Institution and Showtime Networks Inc. that they say restricts makers of films and television shows using Smithsonian materials from offering their work to public television or other non-Showtime broadcast outlets. Ken Burns, whose documentaries "The Civil War" and "Baseball" have become classics of the form, said in an interview yesterday that he believed that such an arrangement would have prohibited him from making some of his recent works, like the musical history "Jazz," available to public television because they relied heavily on Smithsonian collections and curators."I find this deal terrifying," Mr. Burns said in a telephone interview from San Francisco, where he is filming interviews for a documentary on the history of the national parks. "It feels like the Smithsonian has essentially optioned America's attic to one company, and to have access to that attic, we would have to be signed off with, and perhaps co-opted by,that entity."On March 9, Showtime and the Smithsonian announced the creation of Smithsonian Networks, a joint venture to develop television programming.Under the agreement, the joint venture has the right of first refusal to commercial documentaries that rely heavily on Smithsonian collections or staff. Those works would first have to be offered to Smithsonian on Demand,the cable channel that is expected to be the venture's first programming service. A Smithsonian official who is managing the institution's content and production assistance for the venture said yesterday that while the new arrangement did limit the ability of commercial filmmakers to sell some projects elsewhere, it ultimately would affect a small number of the works that draw on the museum's resources."It's not our obligation to help independent filmmakers sell their wares to commercial broadcast and cable networks," said the official, Jeanny Kim, a vice president for media services for Smithsonian Business Ventures."What it boiled down to is that we don't have the financial resources, the expertise or the production capabilities," she added, to continue to provide extensive access to materials but not to reap any financial benefit from the result. She said films that made incidental use of a single interview with a staff member or a few minutes of pictures of elements of the Smithsonian collections would be allowed.The Showtime venture, under which the Smithsonian would earn payments from cable operators that offered the on-demand service to subscribers, comes as the Smithsonian has suffered financial problems. At a Congressional hearing on Wednesday, a Smithsonian official said some necessary repairs to Smithsonian buildings could not be made because of lack of financing. That led to a suggestion by Representative James P. Moran, Democrat of Virginia,to suggest that the institution should charge admission, a proposal that its board of regents has rejected repeatedly.The Showtime agreement began attracting widespread attention this week as filmmakers said they had been told that some of their projects might fall under the agreement. Two Smithsonian curators, who were granted anonymity because they feared for their jobs if they spoke publicly about the Showtime venture, said in interviews yesterday that they could not be certain what kind of projects would be subject to the restrictions because details of the contract with Showtime had been shared with few employees below the executive level. Linda St. Thomas, a Smithsonian spokeswoman, said the details of the contract with Showtime were confidential and would not be released publicly.She said the outlines of the agreement had been left deliberately vague to allow the Smithsonian to consider "on a case-by-case basis" whether a proposed project competes with its new television venture or not. A Showtime executive, Tom Hayden, said the deal was not intended to be exclusionary but was intended to provide filmmakers with an attractive platform for their work. One well-known filmmaker, Laurie Kahn-Leavitt, said she had been told recently by a Smithsonian staff member that her last film, "Tupperware!," a history of the creation and marketing of the venerable food-storage containers, would have fallen under the arrangement, because much of the history of Tupperware is housed at the Smithsonian. The documentary, which won a Peabody Award in 2004, was broadcast on "American Experience," the PBS show produced by WGBH, the Boston public television station."This is a public archive," Ms. Kahn-Leavitt said. "This should not be offered on an exclusive basis to anyone, and it's not good enough that they can decide on a case-by-case basis what they will and won't approve."Margaret Drain, a vice president for national programs at WGBH, said she feared that public television programs like "Nova" and "American Experience"would suffer greatly because of the new restrictions."These are programs that regularly rely on the collections of the Smithsonian Institution," she said. "If access is restricted, we are really going to be in trouble."She added: "I'm outraged that a public institution would do a semi exclusive deal with a commercial broadcaster."

The Smithsonian is not, as I understand it, attempting to exercise any copyright interests. It status on that score is a bit murky, although it is clear that suits against it have to be brought in the Claims Court not in federal district court. Instead, the issue centers on restrictions on access to the physical objects, something that has been discussed in this blog (and elsewhere) before. the effect of the restrictions do seem to point toward a decrease in the creation of new works.

27 comments:

Fred von Lohmann said...

This story is deeply troubling in a number of ways (I'd like to know, for example, just how much taxpayer money has gone into the creation of their collection). But let me introduce one additional variable that may elevate this to apocalyptic.

We are in the midst of a debate at WIPO over a Broadcasting Treaty that would extend to broadcasters exclusive rights of their broadcasts. Under current copyright law, anyone would be free to record the programming created by Showtime, extract any public domain elements, and do with it what they like. After all, if Showtime has already acquired by contract the exclusive right of (commercial) access to the only known underlying physical copies, this would be the only remaining avenue for commercial creators to have access to these public domain works.

Would this still be true after the implementation of a WIPO Broadcasting Treaty? If not, then Showtime may be on its way to effectively privatizing an important collection of public domain material.

In any event, we don't know the answer, because no one has yet developed or circulated any legislation that might implement a Broadcasting Treaty, notwithstanding the fact that the USTR is supporting it at WIPO. This is shameful.

Can future creators extract public domain material from broadcasts that come out of this Smithsonian-Showtime arrangement? Until the USTR (and supporters of the Broadcasting Treaty) can answer these questions, I think friends of the public domain must oppose the treaty.

joshua wattles said...

This Smithsonian/Showtime arrangement is a high handed move by a museum bureaucracy that's been hoodwinked and seduced. The parts that were seemingly left out:

- - Much of the collection is given to the Smithsonian with the expectation of open access by the public and by scholars - - and documentary film-makers are scholars every bit as much as fancy Phds who populate the Smithsonian curatorial and administrative ranks. Documentarians are not the equivalent of a company that wants to make little miniatures of the Castle or scarves with signage from the Air and Space Museum. Documentaries aren't "merch." Documentaries serve the purpose of the museum in educating the public and in exposing, displaying and preserving the collections. They are the essence of the museum's mission every bit as much as its walls and its sculpture gardens.

- - With the above as a predicate, this deal then becomes the equivalent of the Smithsonian Magazine holding a right of first refusal over any academic or special interest article if the author used the museum's collections or papers in its preparation. Would anyone even think that kind of deal would be appropriate? Would any donor stand for that kind of behavior?

- - Exclusivity over product equals the right to dictate the product that gets made. The Smithsonian is, among other things, a repository of the physical history of American politics. That documentary about that nasty man, Dick Nixon, or that documentary about the salacious Jack Kennedy, or the documentary about the KKK in New York state elections in the twenties - - sorry, no access this week; Showtime wants to think about the projects for a long, long, time and then the Smithsonian staff wants to mull it over too.

- - Without even seeing the deal, which the Smithsonian somehow thinks it has the right to keep secret, its financial structure very likely allows the cable stations and Showtime to pull out profit on revenues for their own benefit through administrative and other distribution fees in advance of recouping costs and then, only after the costs are also recouped, will the Smithsonian hope to see any significant benefit. That day is highly unlikely to come. If there is an advance, it doesn't come close to an appropriate payment for exclusive access to the Smithsonian "brand" and the deal structure will very likely force the Smithsonian to spend that advance on administering the new channel rather than letting the institution "bank" it as a profit. The Smithsonian’s net return on postcards is probably a lot better and will likely bring in a whole lot more real money.

- - I don't get this part at all. The Smithsonian board adamantly refuses to charge admission, which I applaud, but it wants to distribute its sponsored documentaries with a pay-per-view model - - the most direct admission fee there can be on television. The deal is a sin; but at least it would be a lesser sin if the exclusive channel were to be advertiser supported. The Smithsonian’s agreement to this construct shows a biased and unsophisticated view of audio-visual media. The Smithsonian apparently thinks all documentaries are some sort of extension of an Imax film with a separate charge for admission and a kick-back to the museum. I wonder if the Smithsonian had the benefit of any experts in the cable and entertainment businesses (and I don't mean lawyers in DC who do regulatory work and play golf with FCC commissioners)?


- - The quote from Jeanny King of the Smithsonian is plainly ridiculous: "It's not our obligation to help independent filmmakers sell their wares to commercial broadcast and cable networks." Nobody, certainly no documentarian I imagine, would dream of asking the Smithsonian to sell a documentary. If J. King thinks that use of the collection is helping to sell the film, then J. King has no concept of what is really needed for a documentary to sell - - if it can be sold at all. J. King goes on to say: "What it boiled down to is that we don't have the financial resources, the expertise or the production capabilities, to continue to provide extensive access to materials but not to reap any financial benefit from the result." The remedy would be to charge for security, curatorial and logistic assistance provided to film-makers - - the remedy is not to turn the entire process into a walled garden for bureaucrats from the museums and from Showtime to lord over. If the assistance provided to a filmmaker is extensive, I can't imagine that a single filmmaker would ultimately object to giving the Smithsonian a reasonable royalty and if they got some decent lawyers working on it I bet the Smithsonian would make more money that way than it will ever see from this super-sized institutional ego-stroking Showtime effort.

I could go on. But if this deal isn’t corrected by saner minds at the Smithsonian perhaps it will be changed when the next donor of a priceless collection of American artifacts demands that full access be given to its collection including full access by audio-visual users. Or perhaps some institution with deposited materials at the Smithsonian could just ask for its stuff back right now, like NASA - - stuff I'm old enough (and started working young enough) to have paid taxes to have built; stuff like the mercury capsule (which I didn’t pay taxes for) or the Apollo capsule (for which I did contribute). Can you imagine Showtime lording exclusivity over productions about the American space program? It was HBO, by the way, that did the brilliant multi-part Tom Hanks produced “From The Earth To The Moon” in 1998.

I love the Smithsonian and its collections. I've literally spent weeks of my life there. I arranged to have major donations of artifacts deposited there. Like many Americans, I've paid to have my kids visit all the way from the West Coast. How many Americans cannot afford to send their children to Washington DC and would learn about the collections from openly distributed documentaries? I hate the idea that the collections will be strangled by an exclusive tie-in in a way that will restrict access in audio-visual representations of the collections.

I plan to write my representatives in Congress. There are plenty of other ways for Showtime and the Smitsonian to make money elesewhere. And as for the "secrecy" of the agreement, I plan to ask my Representatives to send over an Inspector General from any one of the over 29 U.S. agencies and departments that have them.

Anonymous said...

Surely, in the absence of national security concerns--which obviously aren't at issue here--this contact cannot legally be confidential? What am I missing here? Someone should file a FOIA request for it post-haste.

joshua wattles said...

Appologies to anyone called Jeanny King at the Smithsonian. The correct name in my earlier post should have been Jeanny Kim.

William Patry said...

The proposed broadcasting treaty is deeply troubling on its own terms. I will do a posting on it soon

Orangina said...

I'm really troubled by this all too...the more I think about it, the more it bothers me. Trying to get access to historical material is hard enough as it is!What if you don't want your film aired on Showtime? What about the vast library of information that's supposed to be available to all docu filmmakers????

Anonymous said...

Mr. Patry ESQ.

The Smithsonian is not a federally chartered institution like the Library of Congress, it is a charitable trust donated to the Federal Government by Robert Smithson, it includes dozens of privately endowed institutions like the Freer and Sackler Galleries, the Hirschorn, etc. that receive only a small proportion of their operating funds from Federal sources.

Apparently you do not understand how museums operate. Museums have only two items of real worth: their endowment, and their collection. Endowments provide some of the operating funds to protect, conserve, and display the collection. The collection itself cannot provide direct funds to the museum without deacquisitioning works, lessening the value of the collection. However, there is a new angle, museums may restrict physical access to a work, prohibit photography or other reproduction, and permit paid access to copyrighted images provided by the museum. This is how Bill Gates' Corbis Corporation acquired the copyright to Botticelli's "The Birth of Venus," despite the work being over 500 years old and out of copyright. If access is controlled and nobody can photograph the original, the only available images are copyrighted products released by the museum. The museum sold exclusive rights to Corbis, for financial gain. This is an accepted practice.
If museums are expected to be able to afford to conserve and display their collections, they must have the right to a make reasonable profits from reproduction rights on items in that collection. Museums and the art market in general have always maintained value through exclusivity and scarcity. A Botticelli painting is unique and priceless, but hundreds of original copies of Botticelli engravings may exist, they are not nearly so valuable. This value-through-scarcity naturally applies throughout the museum world. Museums naturally have the ability to profit from the scarcity of their collection, otherwise, why would people even come to the museum?
In an era of reduced federal, corporate, and private financial support for museums, these institutions are faced with difficult choices. They can either deacquisition works, selling the very items they are chartered to protect, or they can seek alternate revenue streams. Admission fees from blockbuster shows won't keep the doors open, or pay the curators and restorers salary. Museums have a duty to license their works, cautiously, and with respect for the works, just as the Smithsonian has done. To believe otherwise is naive.

Joe Gratz said...

Anonymous:

I agree completely. The Smithsonian is a cash-strapped institution that serves an important societal purpose, so it should be allowed -- indeed, encouraged -- to capture all of the value derived from the assets it owns. Any other course would be wasteful and irresponsible.

The National Park Service, after all, would never have survived without the regular royalties paid by Ansel Adams on his landscape photographs. Thousands of square miles of public lands would have to have been sold.

Another key example is the Library of Congress, who was forced to start selling off rare volumes until it started charging percentage royalties on all the books reproducing public domain images from its collection. (This is, of course, not to mention the $50 paging charge on books used to research commercially-published works.) If only they had realized sooner that every valuable public service must be protected from unremunerated exploitation!

I'd give more examples, but I've got to get on the phone with the Folger Shkespeare Library right away. They're obviously owed some back royalties on West Side Story.

William Patry said...

I don't claim to know how museums work. It is the case, however, that the Smithsonian is not a purely private institution; it is does receive money from the United States Government and that suits against it are treated as suits against the United States Government. Nor do I think that the Smithsonian should not be able to license material; that is, however, different from entering into an exclusive license, nor does that address why if this contract is such a run of the mill proposition, the details of it are not public. Here is a link to a FOIA request, http://public.resource.org/sunshine.html

Anonymous said...

Mr. Gratz:
A bit of correction on the Ansel Adams issue: the famous Adams prints were created under a work-for-hire contract to the US National Parks and as such, are the sole property of the US Government, which has chosen to place them in the public domain. You can order prints, free of royalties, from the Library of Congress, for just the cost of reproduction. Since the prints are in the public domain, anyone can reproduce them without restriction or royalties, which undoubtedly increased their popularity and widespread distribution. No royalties accrue to the National Parks, but these photos surely are national treasures and inspire people to attend the parks.

Mr. Patry:
You say you believe the Smithsonian has a right to negotiate contracts for royalties on reproductions of its collection. Certainly this implies they have the right to maximize the return on any contracts. Exclusive contracts would most likely have the highest return. Are you arguing that the museums have a right to enter contracts with private parties, but they do NOT have a right to negotiate the most lucrative terms on those contracts? This does not seem logical.

Anonymous said...

FYI, FOIA exemptions don't just cover national security issues.

http://www.corporateservices.noaa.gov/~foia/foiaex.html

Anonymous said...

I wonder if Ken Burns ever gave the Smithsonian any consideration for his use of their content from his money-making merchandising of ball caps, DVDs, CDs, etc.

The Smithsonian needs an extra 100 million a year to keep the rooves from falling in. If you care about it, in addition to the copyfight, why not tell Congress to fork over the money.

joshua wattles said...

To those of you who actually believe the Smithsonian can make exclusive access deals and owes no duty of public access to its collections (I don't mind if they generate revenue as long as access is made genuinely open to all on the same reasonable and approachable terms) and to those who posit that exclusive arrangements are the most financially rewarding to a museum despite much evidence completely to the contrary, I would simply say this: let the Smithsonian make money, turn it into a business enterprise entitled to behave as rapaciously as all businesses are entitled to do in the United States of America, but then make it pay rent for all those buildings sitting on the Mall at my expense and make it kick back a healthy royalty to all the artists, artisans, government agencies, political figures, simple citizens, native peoples of the world and exceptional donors on whose work they are reaping their returns.

The Smithsonian is in fact a public institution and a public repository of treasures that belong to the people despite its unusual legal status as a semi-private association with quasi-governmental oversight. The rules are different when you hold a public trust at public expense.

I don't think we should particularly care what an Italian museum does with its pictures of nekid ladies for the purposes of establishing the appropriate decorum for the Smithsonian's business practices.

Fred von Lohmann said...

More useful items relating to this story:

1. Consider the BBC's Creative Archive. Maximizes access, while preserving a commercial return for the Beeb.

2. The Daily Kos tells us that, based on its 2005 annual report, the Smithsonian received 75% of its budget from federal appropriations or government contracts.

3. A FOIA request has been sent to obtain the contract itself. Expedited treatment has been requested, which means a response is required in 10 days.

element said...

Element List has links to the Smithsonian Budget requests to Congress. They receive over $600M/year from American taxpayers. This money now is more or less subsidizing Showtime. We don't know how much Showtime will be contributing to the Smithsonian, but I would doubt it is anywhere near $600M/year.

Greg Smith said...

Here's an idea: Why don't we start digitizing what is in the Smithsonian and place it on either the Internet Archive or Ourmedia ?

Then tag it using del.icio.us

This will obviously take many years and/or decades.

Anyone willing to start?

John Noble said...

You correctly note that this doesn't appear to be a copyright issue. But is sure as hell looks like a First Amendment issue.

Anon. describes the Smithsonian as "a charitable trust donated to the Federal Government." Other comments allude to federal funding. This strikes me as enough of a predicate to characterize the agreement with Showtime as state action. The exclusivity of the arrangement, and shared control of production is fraught with the potential for content-based discrimination is the allowed access to the raw materials of documentaries.

As an example, Ken Burns' Civil War series is a balanced portrayal of the war that divided America; but it is not hard to imagine proposed documentaries about the war in Iraq, one hundred years from now, that both might draw upon archived photographs and film. If the Smithsonian is a government actor, it's discretion to decide which film is allowed to use archived materials would seem to be a plain violation of the First Amendment.

Even more distressing is the possibility that documentary "evidence," e.g. the photographic record of the Abu Ghraib abuses held by the Department of Defense, might be "donated" to the Smithsonian precisely to prevent access by independent film-makers.

Commenters defending the arrangement point to the Smithsonian's revenue needs, and clearly the Smithsonian has no obligation to "subsidize" the profits of film-makers by providing free access to its archives. But if the Smithsonian is a government actor, access to its archives, whether paid or free, must be content-neutral to survive the First Amendment.

Whether the joint venture is state action is the issue. Anon. argues that it is "not a federally chartered institution like the Library of Congress," that "it includes dozens of privately endowed institutions ... that receive only a small proportion of their perating funds from Federal sources."

More probatively, the Smithsonian was established (if not "chartered") by federal legislation. Whatever the significance of that distinction, it seems more relevant that the Board of Regents charged with its administration includes, by law, the Chief Justice, Vice President, 3 members of the Senate and 3 members of the House, which account for 8 of its 17 Regents, and currently include:

- Chief Justice John G. Roberts, Jr., Chief Justice of the United States and Chancellor of the Smithsonian Institution

- Richard B. Cheney, Vice President of the United States, ex officio

- Thad Cochran, Senator from Mississippi

- Bill Frist, M.D., Senator from Tennessee

- Patrick J. Leahy, Senator from Vermont

- Xavier Becerra, Representative from California

- Sam Johnson, Representative from Texas

- Ralph Regula, Representative from Ohio

If this isn't state action, I don't know what is.

John Noble

Anonymous said...

FUD FUD FUD - spread by Discovery, History Channel, and Nat'l Geographic because the SI is diving into their waters.

Anonymous said...

Those of us who are long-term Smithsonian members will recognize the "leadership" positions of the Chief Justics, Vice-President and Senators as what they truly are: figureheads. The Smithsonian is operated by "the Secretary" Lawrence Small.

John Noble said...

All I can say is that I'm not shilling for anyone. Never heard of this issue before I saw it here, and wrote my comment without checking with anyone else to find out what I was supposed to think. The accusation is a little hard to take from someone who prefers to remain anonymous while shilling for the Smithsonian.

I'm not sure how it helps Anon's case to characterize the Board of Regents as figureheads, but perhaps it explains the decision to remain anonymous. The law requires that "the business of the Institution shall be conducted ... by a Board of Regents." 20 usc 42. The Secretary is selected by the Board, and charged with the exercise of his duties "under their direction." 42 USC 46.

I'm not sure how closely the responsibilities of the Regents track the responsibilities of Boards of Directors, but the latter have recently learned to take them more seriously. Perhaps the Regents remain figureheads because they don't have shareholders to whom they owe fiduciary duties, and who might sue them after the CEO is led off in handcuffs. Which isn't to say that Small has done anything wrong, but to call his tenure rocky would be an understatement.

All of which is secondary to the question: whether the Smithsonian/Showtime joint venture is state action. It doesn't matter who is on the Board. What matters is that Congress created the Institute; the board is dominated by government officials who choose the Secretary and decide how long his leash is; and the Institute is asking Congress for $644 million for FY 2007.

If it is state action, and it sure looks like it, the question is whether it burdens the exercise of First Amendment rights.

In simple terms -- can the state have a legal right to control the distribution of films that "document" recorded evidence acquired by the state?

More simply: Can they buy silence? Set up an institute. Give it whatever legal attributes distinguish it from a government actor in Anon's estimation. Turn it loose with the appropriation of whatever it takes to acquire the historical record.

Now here's the hard part. You can't pass a law that gives the government the right to control the distribution of documentary films based on the historical record. So you sign a contract agreeing to share the right to control distribution of documentaries with Showtime (wonder who controls Showtime -- bet they aren't as clumsy with the interlocking board and annual appropriations). Now it's a shared option to contol distrubtion of documentary presentations (with interpretation and opinion) of recorded history. Depending on the tie-breaker in the joint venture agreement, the government instrument has either given itself, or given away the option to control distribution.

Just Browsing, Thanks said...

There's another troubling aspect to this post: that the operator of this blog has chosen to violate the New York Times' copyright, by "reproduc(ing) in its entirety" an article from the paper's April 1 edition.

Anonymous said...

I'm not some secret agent shilling for the Smithsonian, I've been a member for years, because I think they're worthy of funding, and in return I get a membership card and a magazine. I get discounts at Smithsonian facilities, but never in my entire life have I ever set foot inside any of their museums. Does that sound like a conflict of interest? Maybe it's a conflict of interest that I subscribe to Showtime too?

Anyway, I think you better look at case law a little closer. The Westlaw case clearly decided that the US Govt has the legal right to grant exclusive contracts for publishing and copyrights of historical records.

John Noble said...

I cannot even imagine what "Westlaw case" you're referring to, but it certainly didn't hold that the Government has a legal right to grant exclusive rights to publish anything. I am the editor of Computer Law Reporter. I publish copies of Court decisions every month. If I get them from Westlaw, I have to strip out Westlaw's headnotes and pagination. It's a pain in the neck, so I get them from Lexis, or I get them from Pacer.

The Government can't grant exclusive rights to publish anything unless they acquire an exclusive license from the copyright holder. Which is what they are doing here by conditioning access to uncopyrighted works in the public domain (the Smithsonian archives) upon agreement to surrender exclusive distribution rights in the copyrighted documentaries to the Smithsonian's joint venture with Showtime. They aren't /giving/ anyone an exclusive right -- they're /taking/ an exclusive right. They are fooling you and most everyone else into thinking that they are granting an exclusive right, when all they are doing is seizing the right that they are pretending to share under the cloak of a joint venture agreement.

The contract is indistinguishable from a law which prohibits the distribution of documentaries based on the historical record in the Government's possession without the Government's permission. It is censorship, pure and simple.

It would also be a grotesque antitrust violation if it was being done by anyone but the Government. It is as if Bill Gates, who owns Corbis, decided he would license access to the Corbis archive only on the condition that he got to own the distribution rights of the licensees. Except that Gates knows better than to even try. When he tried to take control of the OEM distribution channel as a condition upon the license to install Windows in their computers, the Government sued him. He gave up that obviously unlaw attempt to control the distribution channel for Windows computers before the case even got to court; and that's the only thing the Government beat him on.

The differences are that Gates owned a copyright, and absent monopoly power, a right to control distribution of Windows. Here, the government used tax revenues and tax deductible contributions to acquire a significant measure of market power in the public domain historical record. This agreement leverages its control of the market for access to the historical record to exercise control over the market for the distribution of documentaries.

25 years from now, when film-makers want to follow in Ken Burns footsteps to make a film about the War in Iraq, they're going to want to use Armed Forces photographs and footage held by the Smithsonian, along with all those pictures from Abu Ghraib that the Government seized before anyone published them. When the Mel Gibson and Michael Moore of 2050 finish their films, the Mel Gibson version will open in 500 Paramount theaters, while the Michael Moore version runs at 2 a.m. on Showtime's Smithsonian channel. Viacom, which owns both of them, will deduct the cost of subsidizing the Smithsonian channel as a public service from profits generated by Paramount's Government-approved propaganda.

This is not an uncomplicated issue. Its ramifications are not clear, not least because they won't tell us what's in the contract. But the bottom line -- the unavoidable and obvious point -- is that the Smithsonian/Showtime joint venture assumes a right to control, i.e. promote or prohibit, the distribution of documentaries that are based on the historical record of primary sources acquired with funds appropriated by the federal government.

I have no doubt that the Smithsonian needs money to support its mission. But they could license access to the archives indiscriminately without insisting upon an option to acquire the distribution rights. The Copyright Office is also an expensive operation, but they charge everyone the same fee to register a copyright. What if they let everyone register their copyright for free, but demanded an option to acquire distribution rights -- for the books that they thought would be profitable, along with the books they didn't want anyone to read?

Phillippe said...

But there's one other potential problem here that I haven't seen mentioned. Many, if not most, employees of the Smithsonian are, in fact, employees of the Federal Government, not the Smithsonian Trust. All the PR people who will now have to refer people to Showtime for access (roughly) are FEDERAL employees. Most of the curators, most of the administrative people: FEDERAL. The Trust employs only a fairly small percentage of Smithsonian Staff, mostly the fundraising people.

and I have one other problem. I live in DC, I am a Smithsonian Associates member, my girlfriend works for the Smithsonian (hell, I'm wearing a Smithsonian Tshirt right now) but we cannot get Showtime on Demand, at any price, Comcast doesn't make it avaliable in our neighborhood. how's that for irony? she now has to sell 'documentaries' that she can't watch at home!

Anonymous said...

There is a very pragmatic way to derail this ripoff. Go to the phone right now. Call your cable or DBS company. CANCEL SHOWTIME. Tell them why. Then email both Smithsonian and Showtime and tell them you will consider re-subscribing when they have dumped the deal and FIRED every employee involved.

When the politicos and Sumner Redstone see their numbers dropping, their bottom line in the toilet, good old American free enterprise and self interest will kick in, and this sleazy, arrogant, elitist deal and its slimy perps will be toast!

Bravo to all of you for your learned debate in the finer points of law. Hopefully, it will deter future schemers.

Estelle said...

Put aside the fact corporate greed was given the right to drive this country into the ground and pretend the nation's best interests are the driving factor.
If they had a choice, woud they be doing this? Does anyone beside Showtime think it is a good idea to pay around with our living history?
The bottom line is the Smithsonian, like every other federal institution in the land, is broke. Parks, roads, utility companies, drilling rights and anything else saleable is being auctioned off. The US borrows 80% of the worlds money. Mostly to pay off other creditors. It won't be long until the statue of Liberty and Liberty bell are leased out too.

Anonymous said...

Two questions

How much money does Mr. Burns stand to possibly lose, because of the Showtime contract.

How much has Mr. Burns donated to the Smithsonian due in gratitute of their assistance in his ventures?

Both rhetorical questions, but this is about money not access. Why should the museum allow others to profit off its intellectual capital while not receiving anything in return. I can understand diagreements with choosing showtime, maybe you dont like the company and you prefer HBO or Timewarner; but would their be an uproar if the smithsonain required Mr. Burns to share a percentage of his revenue? I think so.