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The archives of the Smithsonian Institution in Washington, D.C. contain roughly three million images. You can see thousands of photographs on the Smithsonian's Web site. And for a fee, the institution will sell you high-quality digital copies of some of them. Critics charge that this practice and restrictions the Smithsonian places on some of the use of these images violate copyright law.
For member station WHYY, Joel Rose reports.
JOEL ROSE: Eadweard Muybridge is remembered for his photographs that settled a famous bet proving that a horse actually does leave the ground when it's galloping. A few years later in 1884, the University of Pennsylvania invited Muybridge to Philadelphia where he took thousands of pictures of people and animals in motion. His images are now in the Smithisonian's collection.
Mr. CARL MALAMUD (Co-founder, Public.Resource.Org): I don't know how they could be anything but public domain. But according to the Smithsonian, I'm not allowed to use them without their specific permission.
ROSE: That's Carl Malamud, an Internet activist who has challenged the Securities and Exchange Commission and C-Span over their online policies and won. He says the Muybridge images are way too old to be protected by copyright, but Malamud says he had to get the Smithsonian's permission and paid $200 before he could download a high-quality copy.
Mr. MALAMUD: The whole point of the public domain is that it isn't owned by anybody. You don't have to ask. You can use it for anything. Taking material in the public domain, pretending that it's property and telling people they can't use it is directly contrary to the mission of the Smithsonian.
ROSE: To make his point, Malamud bought three high-quality images of Muybridge's contact sheets and posted them for anyone to use free on the Internet earlier this month. People who use these images in films or books should have to pay for them, Smithsonian official say, because scanning is expensive. Linda St. Thomas is a spokesperson for the Smithsonian.
Ms. LINDA St. THOMAS (Spokesperson, Smithsonian Institution): Our goal is to be very open about our photographs, although we cannot afford to offer high-resolution photographs to everyone who asks.
ROSE: St. Thomas points out that the Smithsonian does make lower resolution versions of these images available for free, but Malamud says the quality is too low. And he objects to restrictions the Smithsonian places on how the images can be use, so Malamud posted more than 6,000 of those images on the Web, too, without the institution's warnings.
Mr. MALAMUD: The kinds of warnings that, let's say, you can use it but, if you do any of these things, it's not okay. And it's the kind of warning that if a kid goes to a teacher, and says can I use this on my report? The teacher will probably look at those and say, hmm, let's go look some place else for some material for your report.
ROSE: The institution's Web site says the Smithsonian quote, "specifically retains any rights including possible copyright," which it may have in these files. Spokesperson Linda St. Thomas says it's rare for the institution to deny permission for a commercial use of these images though it has happened.
Ms. St. THOMAS: We wouldn't want a photograph being use in a - I don't know, pornography publication or something. We are not monitoring things. We just want to make sure that it's appropriate use of Smithsonian resources.
ROSE: This isn't the first time a Smithsonian business venture has been criticized for trying to make money from the institution's collections. Earlier this year, filmmakers denounced the Smithsonian's semi-exclusive deal with the cable channel Showtime. Like the Smithsonian, the Library of Congress gets the majority of its funding from the federal government but the Library is taking a very different approach to the prints and photographs it makes available online. Spokesman Matt Raymond says more than one million digital images are available for free, no questions asked.
Mr. MATT RAYMOND (Spokesperson, The Library of Congress): We were established by Congress as a universal repository of human creativity and knowledge, and that includes vast amounts of items that are in the public domain and it is our mission to make those freely accessible whether in the 21 reading rooms of the Library of Congress or online.
ROSE: Raymond says it's up to users to determine if any of those digital materials are under copyright. That's the kind of policy activist Carl Malamud says he'd like to see applied to the 6,000 images that are now for sale on the Smithsonian's Web site.
Mr. MALAMUD: It's part of our nation's scrapbook. It's imagery that needs to be available. It's George Washington's uniform, right? It's Orville Wright in his airplane. It's a Space Shuttle landing. It's our national heritage.
ROSE: Malamud admits he violated the Smithsonian's policy by posting the photos on the Web, although a spokesperson says there are no plans to take any legal action against him.
For NPR News, I'm Joel Rose.
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