Smithsonian's Showtime deal: critical attorneys shred it

Rich Gombert says,

I am a regular reader of Boingboing. I am a contributing member of the Smithsonian. After reading the article about the Smithsonian's Showtime deal, I wrote to the Smithsonian to complain.

The Smithsonian's press office responded to Rich, and the full text of that reply follows.

EFF senior staff attorney


Fred Von Lohmann
read that reply, and tears the Smithsonian a new one -- his counter-arguments follow after the jump, along with point-by-point shredding from Los Angeles entertainment attorney Joshua Wattles. All three believe the deal is bad news for the American public, and I do too. Let's start with the email Rich sent to the Smithsonian membership office:

Dear Sirs: I am very disturbed over an article that appeared in the New York Times. Have you, in fact, made such a deal that takes away my rights to the material that I (as a contibuting member and a U.S. Tax payer) have paid for? If you persist in such practice I will no longer be able to support this fine instituion. One that I'm proud to say I have been a supporting member of for more than 30 years.

Smithsonian Members Relations Specialist Jennifer Barton wrote back,

Please find below the Smithsonian’s response to the reports on the new Smithsonian On Demand service. I hope you fill this information will answer all your questions and concerns. We appreciate you sharing your thoughts with our office.

Here's the Smithsonian's statement:

Recent press articles about the new venture between the Smithsonian and Showtime have been factually inaccurate and cause for some confusion. I want to make sure you have the correct information about Smithsonian On Demand, which I believe will be an exciting new showcase for our collections and curators as well as a financial benefit to the Institution at a critical time.

In keeping with our mission, “the increase and diffusion of knowledge,” the Smithsonian is constantly seeking to expand access to our many historic artifacts, artistic treasures and scientific breakthroughs. We have long sought a way to take advantage of the power of cable television to expand the reach of the Smithsonian. An analysis over the last ten years showed inconsequential use of our assets and archives and that few documentaries had been produced. Yet, we have never found an effective means to use cable television—until now. Our agreement with Showtime will expand access to our objects and our brilliant scientists and scholars, and is in perfect accord with our mission to “diffuse knowledge.”

Here are the erroneous claims and the actual facts:

1. Claim
This entire business arrangement flies in the face of the Smithsonian’s commitment to make the national collections available to everyone and to its very mission as a public institution.

Fact
This is not an attempt to limit access; rather, it will result in increased exposure for the Smithsonian collections, experts and programs. No filmmaker has done entire programs about the Institution’s subjects in more than 20 years. The objective of this venture is to create more than 100 programs a year about the Smithsonian’s collections and research, allowing millions of people who do not visit the museums or do research behind-the-scenes to be able to appreciate and understand the Institution as it is made available on television. We fully understand that we are a public institution, but as caretakers of this vast collection, we also have the right to exercise control over the use of it.

2. Claim
The Smithsonian is limiting access to its collections and archives.

Fact
Our collections continue to be open to all researchers, whether they are working on a video for school curriculum or on a video to show in another museum. In addition, we continue to be open to all news and public affairs requests. Independent producers will proceed as usual completing a questionnaire to determine exactly what they want to film and where they intend to sell the final product. We will then determine what course of action to take as we have done in the past.

3. Claim
This is an exclusive or “near exclusive” arrangement which means that producers who formerly had access to Smithsonian now will not.

Fact
Nearly all of the requests from independent producers for interviews, images and access to the collections will be honored as they have been in the past. Their use of Smithsonian content has been incidental, that is, the Smithsonian is not the subject or the major component of the documentary.

4. Claim
Independent producers will have to work with the Showtime producers or not work with Smithsonian at all.

Fact
Since most of the programs being produced by independent producers are only using Smithsonian content in an incidental manner, this is rarely an issue. However, if the program proposed is substantially about the Institution or incorporates more than an incidental amount of our content, it will then go through a process during which the Institution will determine whether to proceed. It may be that we want to hire that producer to make the video with SOD; it may be that the producer does the show outside of SOD; or we may decline to participate.

5. Claim
Only a small fraction of TV viewers have “on demand” capability.

Fact
Not true. Digital cable services are the fastest growing segment of the cable market, currently in more than 25 million households today and with a viewership that grew from 100 million to 1.7 billion in just over a year, according to video-on-demand tracking agency Rentrak (VODs version of Nielsen Ratings). SOD is separate from Showtime, entirely independent to the consumer from Showtime. A consumer does not need to pay for Showtime to enjoy our programming.

6. Claim
Documentary producer Ken Burns says that his multi-series programs on baseball and jazz would not be permitted under this new arrangement.

Fact
Not true. In all his PBS series, Burns has used the collections for research but never interviewed a Smithsonian curator on camera. The use of our content would be considered “incidental” to the series and would be permitted.

7. Claim
This is a terrible way to treat independent filmmakers; the Smithsonian is cutting into their ability to make a living.

Fact
Smithsonian on Demand will be hiring dozens of independent filmmakers each year, probably spending in excess of $10 million, to produce the programs for this channel. We expect to be creating more opportunities for them to make documentaries using Smithsonian content than they have had in the past. The filmmakers quoted in news articles all sold their documentaries to for-profit outlets such as The History Channel, Discovery, National Geographic and others. The outlet and the producer derive money from the project and from any spin-offs such as the sale of DVDs. The taxpayers who support the Institution have no obligation to support or enrich these commercial ventures. By creating our own programming service, the Smithsonian will receive funds that will support its collections and programs.

8. Claim
The Smithsonian will not divulge the terms of the contract with CBS/Showtime.

Fact
True. This is a business contract that does not involve federal funds. Such contracts are confidential as they contain proprietary information that no company should have to share publicly.

9. Claim
Most requests from filmmakers will be denied since this exclusive arrangement began.

Fact
In the past six weeks or so, we have fielded 26 requests. Of these, 24 were approved.

Fred Von Lohmann of the Electronic Frontier Foundation replies, point by point:

1. This is not an attempt to limit access; rather, it will result in increased exposure for the Smithsonian collections, experts and programs (...).

Notice the double-speak in the response -- the Smithsonian says the arrangement will result in increased "exposure". That's obviously not the same as increased "access". The Showtime deal will obviously limit **access** to the collection -- that's what commercial exclusivity means.

The question is not whether documentaries have been made in the past -- the question is the *best* way to encourage more creative use of the collection in the future. The Smithsonian repeatedly states that few documentarians have done "entire programs" on the Smithsonian or its collections. That, of course, may be related to the limitations inherent in physical collections that have not yet been made digitally available. The Showtime deal creates strong incentives **against** providing high-quality, complete digital access to the collection, since that might undermine the exclusivity guaranteed to Showtime. If you want to see how access and commercial exploitation can work together, look at the efforts being made by the BBC with its Creative Archive.

2. Our collections continue to be open to all researchers, whether they are working on a video for school curriculum or on a video to show in another museum (...)

Another exercise in doublespeak. It is true that the Smithsonian is not limiting **all** access (that would be even worse!). Access apparently remains unchanged for researchers and journalists. But access for commercial uses (beyond "incidental" uses) has plainly been limited. Of course, "incidental" is not defined. I would be curious about the standards that are applied to determine whether a use is "incidental."

7. The taxpayers who support the Institution have no obligation to support or enrich these commercial ventures. By creating our own programming service, the Smithsonian will receive funds that will support its collections and programs. (...)

Finally, here's an honest answer. The Smithsonian wants to get a return on commercial uses of its collection. That's a fine and sensible goal -- after all, we taxpayers have been footing the bill for some time now (75% of the Smithsonian's 2005 budget came from government sources), so bringing in more private money is a good idea. But there are better and worse ways to make money from a collection that has been built on taxpayer and philanthropic contributions. Again, compare the process that the BBC went through in considering how to make its archives available -- as I understand it, there was a public process, a discussion about how to maximize creative access, while simultaneously generating a commercial return. I'm not aware of anything similar being done at the Smithsonian.

8. This is a business contract that does not involve federal funds. Such contracts are confidential as they contain proprietary information that no company should have to share publicly.

But the Smithsonian is not just another "company." Unlike Joe's Garage (or Showtime, for that matter), the Smithsonian has agreed to abide by the terms of FOIA. This appears to be inconsistent with their legal responsibilities.

Joshua Wattles, an entertainment industry attorney in Los Angeles, shares a few thoughts on the Smithsonian's reply:

1. This is not an attempt to limit access; rather, it will result in increased exposure for the Smithsonian collections, experts and programs (...).

It’s great that the Smithsonian views the Showtime deal as an opportunity to increase exposure for the collection. But the price they are paying, excluding others with independent productions from access to the same level of museum cooperation, does not match the museum’s responsibility as a public institution holding a public trust for the benefit of the public. Increasing exposure for the collection to only those who can pay a per-program fee for that access and doing so at the certain profit of Showtime in advance of the financial interests of the Smithsonian, is just plain bad business given the business that the Smithsonian is supposed to be in.

2. Our collections continue to be open to all researchers, whether they are working on a video for school curriculum or on a video to show in another museum (...)

Let’s put the arrogance to one side. The Smithsonian will determine its course of action on the basis of a secret agreement that contains exclusivity provisions and limits on cooperation with other scholarly works - - documentaries aren’t little replicas of Smithsonian artifacts sold at an airport kiosk.

3. Nearly all of the requests from independent producers for interviews, images and access to the collections will be honored as they have been in the past. Their use of Smithsonian content has been incidental, that is, the Smithsonian is not the subject or the major component of the documentary.

This answer, I suspect, tips the hand on what the Showtime agreement says in part about exclusivity. “Incidental” uses are permissible - - anything else isn’t. I hope that the contractual definition is better crafted but I have my doubts because the NYT article quotes a Smithsonian person as saying that the contract had been left “intentionally vague.” Here’s part of the problem. The Smithsonian, having never apparently produced any significant audio visual content on its own steam is now in a partnership that needs to be fed (according to this response) “more than 100 of programs a year’ !!!!!! I’m a producer and I have a project that needs stuff from the Smithsonian; it now has a schedule to fill; is my use “incidental” or not? I assume, by the way, that they get to this huge programming number either out of the ignorance of the spokesperson or by reliance on one of the magic collections held by the American History museum. The other part of the problem: this is an institution holding a public trust and it cannot block use of the collection on the basis of standards that are “intentionally” vague and (as admitted here in this response by the use of “we” ) by standards to be interpreted and applied by only the Smithsonian staff without appeal who are further motivated to protect and defend the deal with Showtime and that superior relationship.

5. Digital cable services are the fastest growing segment of the cable market, currently in more than 25 million households today and with a viewership that grew from 100 million to 1.7 billion in just over a year, according to video-on-demand tracking agency Rentrak (VODs version of Nielsen Ratings). SOD is separate from Showtime, entirely independent to the consumer from Showtime. A consumer does not need to pay for Showtime to enjoy our programming.

This comment leaves out one very important point: video on demand requires a per-program cash payment for viewing. The Smithsonian board doesn’t charge for admission to the collection at the museums but here... At least National Geographic Television is in a feels-like-free basic service tier on either cable or satellite.

6. In all his PBS series, Burns has used the collections for research but never interviewed a Smithsonian curator on camera. The use of our content would be considered “incidental” to the series and would be permitted.

Another tip of the hand on the restrictions of the Showtime deal? If it really says that Smithsonian curators cannot be on camera except in a Showtime program, then there is serious problem. I can write an article and interview a curator whenever I feel like it and the Smithsonian has an admirable record in that kind of cooperation. But if I take a digicam with me, the Smithsonian police are going to take it away!

7. Smithsonian on Demand will be hiring dozens of independent filmmakers each year, probably spending in excess of $10 million, to produce the programs for this channel. We expect to be creating more opportunities for them to make documentaries using Smithsonian content than they have had in the past.

What? The Smithsonian doesn’t get money from Showtime. Instead it’s going to contribute $10 million. It’s been really taken for a ride here. ( I assume the $10 million is the museum’s share because “more than 100 programs a year” costs a whole lot more.) We’ve really been taken for a ride. According to one source as much as 75% of the Smithsonian’s budget is covered by government grants or contracts and that’s presumably before calculating the in-kind contributions of spy planes, NASA souvenirs, political artifacts and piles of other things bought and paid for by taxpayers as well as not accounting for the break it gets on rent for that prime space on the Mall.

9. In the past six weeks or so, we have fielded 26 requests. Of these, 24 were approved.

To paraphrase the song, “The worst is yet to come and boy it will be ….”

Previously: Smithsonian becomes Showtime's exclusive first-refusal archive

Reader comment: Steven Lubar of Brown University says,

Been following the outrage over the Showtime-Smithsonian link with interest. Boing-Boing readers might be interested in an earlier Smithsonian agreement that resulted in the extinction of the Smithsonian Institution Press and a similarly exclusive deal with Harper-Collins.
Link and another link.

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