Re: enforcement, there’s not even any need to get all lawyered up or debate the “who sues who” thing: if somebody complains and gets some bureaucrat exercised enough to actually do something, a simple takedown notice to YouTube on government letterhead would likely condemn the thing to oblivion for eternity.
I understand the Smithsonian has a policy that Fran does not approve of but the problem here is it feels like this is just another 'unfair world' play...
Could the Smithsonian enforce what is effectively an EULA against a visitor?
Could the Smithsonian enforce what is effectively an EULA against a visitor?
They can make any rules they want and have security throw you out for any reason at all. It doesn't mean it's "legal", but it's not "illegal" unless decided by a court of law.
It's not like you can go get a police offer and complain to them to let you have access, they are just going to shurg their shoulders.
Owners of a property have the right to make rules regarding entry to that property, and people have the right to attempt to sue them for access.
It has nothing to do with IP rights because there are not any. In the US (and UK), copyright applies to something fixed into a tangible medium. Anything with music is a different matter because of other rights but for instance a sporting event by itself is not copyrightable. There are no copyright, trademark, or other IP rights with the LEM itself or other similar artifacts. A photograph or video of the LEM would almost always be copyrightable by the person who took it.
This whole thread is fundamentally about intellectual property (IP) rights: the inherent right of an intellectual property owner to control how their property is used, viewed, monetized or otherwise exploited.
Whether it’s private property, the property of the US government or a private foundation funded by the US government makes no difference: an IP owner is entitled to make any rules they like surrounding the use of its IP.
If the usage policies happen to be overly ham-handed because they were made prior to the rise of Youtubers and Vlogs, that’s likely because things move fairly glacially at the institutional level. And given the potential that the use of governmental IP might also be used to convey a certain legitimacy for off-the-wall or outright offensive use, perhaps they feel that there is no screaming rush to redress the semi-pro YouTube usage situation.
If such policies happen to offend those who think that government institutions should not have any such IP rights, or should waive them for whatever reason, then that’s a political issue, and good luck with that: Politicians have bigger fish to fry, and nobody’s chances of getting re-elected will ever be dependent on facilitating the making of entertaining videos for the internet.
Re: enforcement, there’s not even any need to get all lawyered up or debate the “who sues who” thing: if somebody complains and gets some bureaucrat exercised enough to actually do something, a simple takedown notice to YouTube on government letterhead would likely condemn the thing to oblivion for eternity.
As for trying to suppress an IP claim in court, either it’s “public domain” and not protectable as IP, or it’s not, and prior case law for the jurisdiction would prevail. And while I’m not a DC lawyer, I simply can’t believe that there isn’t already plenty of precedents that allow the US government (and the Smithsonian specifically) to claim full rights to their IP as they have done via their commercial usage policies.
My point here is to support the notion of IP rights for all legal entities, something Youtubers should be holding near and dear, and not to necessarily justify the specific IP control policies of the Smithsonian. Again, those are political and administrative in nature, and are made by people ultimately hired by those who are voted in by the electorate. And people always get the government they deserve.
I am just going to respond in general.
It has nothing to do with IP rights because there are not any. In the US (and UK), copyright applies to something fixed into a tangible medium. Anything with music is a different matter because of other rights but for instance a sporting event by itself is not copyrightable. There are no copyright, trademark, or other IP rights with the LEM itself or other similar artifacts. A photograph or video of the LEM would almost always be copyrightable by the person who took it.
YouTube would just fold and remove content when asked by the Smithsonian or Showtime. But this has nothing to do with copyright.
The Smithsonian can ask someone to leave under penalty of trespass or prevent access which is what happened here.
In the US, the misappropriate doctrine or unfair competition might apply (the UK has equivalents) if the video was used commercially but it is not clear. The court cases I found only covered live streaming. Presumably of course the Smithsonian and Showtime could lawyer someone to death and win even if they would ultimately lose.
Could the Smithsonian enforce what is effectively an EULA against a visitor? I checked and could not find anything so formal from them online but maybe it is part of a ticket or something they give to visitors? Sport concessions have not been very successful with this.
I mean could they enforce an EULA against someones use in any way of their own video and photographs taken on the Smithsonian's premises? If someone visited as a tourist and took video or photographs which they then later used for commercial purposes, say in a book or video documentary, what could the Smithsonian do?
I understand the Smithsonian has a policy that Fran does not approve of but the problem here is it feels like this is just another 'unfair world' play...
It's not just a policy, it's a ridiculous agreement with a commercial company that prevents independent creators from creating content on historical artifacts that are supposed to be owned by and funded mostly by that taxpayer. It's a very valid concern that goes way beyond Fran.
I mean could they enforce an EULA against someones use in any way of their own video and photographs taken on the Smithsonian's premises? If someone visited as a tourist and took video or photographs which they then later used for commercial purposes, say in a book or video documentary, what could the Smithsonian do?
As someone for whom DC is part of my "stomping grounds" growing up, this makes my blood boil. I had no idea the SI had entered into this agreement, and it strikes me as something that should be illegal, if it isn't. The SI is administered by the federal government and the vast majority of its employees are federal employees. It certainly is de facto a government institution, even if it's not one de jure.
I don't have a strong opinion one way or the other. In fact, I doubt I could care less but I don't get all the outrage. I don't see where people get the feeling they have a right to enter a museum on their own terms.
Some people seem to have a moral objection against a private company making money off government contracts but I see nothing wrong with that.
So the Smithsonian has a policy you don't like? Don't go there! I don't get the outrage.
Those in other countries who point things like this out as the ills of Capitalism - this is not Capitalism AT LL. This is a government permitted monopoly.
So the Smithsonian has a policy you don't like? Don't go there! I don't get the outrage. Why would you go somewhere where you are not content to be there? You don't like the way they treat you in a store? Shop somewhere else. It is very simple.
Being able to film or photograph stuff in a majority taxpayer funded and administrated museum is a pretty reasonable expectation.
Ask any citizen if they think they should have the right to do that and the answer will be yes.
The Smithsonian needs to supplement its income and they have two choices: (1) is charging visitors an admittance fee and (2) is charging for commercial filming.
https://www.britishmuseum.org/about_us/services/film_and_radio/filming_at_the_museum.aspx
Commercial filming in the Museum
Filming inside the Museum building requires a greater level of organisation and will therefore incur a charge. Please contact the Commercial Filming Team directly for our rate card.
All requests will be handled by the Commercial Filming Team via an enquiry sent to filming@britishmuseum.org
Please be advised that no filming may take place in the Museum at weekends unless cleared directly with the Commercial Filming Team.
All film crews will be required to have public liability insurance when filming on site.
When I googled Smithsonian shortly after this thread started I found some info going back many decades where the Smithsonian wanted to charge entry fees for an additional source of revenue rather than rely on the whims of Congress. Each time Congress denied them the right to an entry fee and one can only presume additional funding was granted so that public entry would remain free.
Now there is a commercial arrangement giving exclusive filming rights in exchange for some dosh to help run the place it's little wonder the arrangement impacted on others filming rights.
It might seem the only way to reverse this is to get additional Congress funding and let the existing filming arrangement expire.
That would be the only way to reverse it for a commercial entity. Considering this has to do with the government you can simply eliminate the contract by changing the rules. Being the government of tightly affiliated with it makes life easy. The house always wins.
And you can get whatever answer you want by phrasing the question the right way:QuoteThe Smithsonian needs to supplement its income and they have two choices: (1) is charging visitors an admittance fee and (2) is charging for commercial filming.
The only people who are going to choose (1) are people doing commercial filming.
And it is not like this is unheard of. Here is the policy of the London British Museum.Quotehttps://www.britishmuseum.org/about_us/services/film_and_radio/filming_at_the_museum.aspx
Commercial filming in the Museum
Filming inside the Museum building requires a greater level of organisation and will therefore incur a charge. Please contact the Commercial Filming Team directly for our rate card.
All requests will be handled by the Commercial Filming Team via an enquiry sent to filming@britishmuseum.org
Please be advised that no filming may take place in the Museum at weekends unless cleared directly with the Commercial Filming Team.
All film crews will be required to have public liability insurance when filming on site.There you go. Public liability insurance.
I bet this is not uncommon at all in government-sponsored museums around the world.
And I know many art museums outright ban all photography and filming without a permit, commercial or not.
Maybe things are different in the southern hemisphere.