What Would Luther Burbank Do? – Malamud’s Public.Resource.Org Complains to Smithsonian

Public.Resource.Org, a US non-profit started by Carl Malamud, among others, has launched a complaint against the Smithsonian Institution in a rather unusual way. The complaint is in behalf of Mindy Summers, “an artist who lives in a purple house in Vermont with her husband and two cats” and who copied and offers for sale photographs of vintage seed catalogs originally published on the Smithsonian website. The Institution sent her a take-down notice, claiming she had violated its terms of use, particularly because she was making commercial use of the images. PRO’s complaint is published on a special-purpose website named “What Would Luther Burbank Do?“.

On its Terms of Use page, the Smithsonian acknowledges that the copyright situation for material on its site is a mixed bag, some rights belonging to the Institution, some to other individuals, and some objects being in the public domain. The Institution also claims to be “the owner of the compilation of content” on the site. And the Terms purport to forbid commercial use in any and all cases: “You may not use the Content for commercial purposes.”

The “Burbank” complaint challenges this assertion on the basis that

The Smithsonian Institution is an instrumentality of the United States, chartered by the Congress, and the recipient of $745.8 million dollars in federal appropriations in FY 2009. The Smithsonian Institution receives use of some of the most valuable real estate in the country. The Smithsonian Institution is not allowed to claim copyright in ownership in items unless it falls under specific exemptions, such as a specific requirement by a donor that copyright be maintained on specific items.

The US copyright law provides that copyright protection is not available for any work of the US government.

Moreover, PRO has thrown down a gauntlet of its own by taking steps to make the seed catalogues in question directly available on the photo-sharing site Flickr, “in direct violation of the Terms of Use and Licensing Policies.” (See also here, for “enhanced” versions of these images.)

Luther Burbank, as you will likely know, was an American pioneer in agricultural science who demonstrated in his work the power of creativity. The reference to him here is meant to draw attention to the aims of copyright law and, indeed, the Smithsonian, to spur and support invention and creativity.

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