It looks like the US government is looking to lock up the public domain yet again. This time, the Defense Department is taking its vast media archive of declassified public domain material, dating back decades, of things like photos and videos, and handing it off to a private company
called T3Media, which will be digitizing the content. Getting that content digitized seems like a good thing, but as Rick Prelinger tells BoingBoing, it appears that T3Media is then locking up that media
with the intent to "license" it.
In exchange for covering a share of digitizing and hosting costs (the government will pick up an unspecified share of costs as well), T3 Media will provide access to the government and receive a 10-year exclusive license to charge for public access to these public domain materials.
I contacted T3Media's communications manager who could only tell me that "the material will be available for licensing." Costs, procedures and restrictions are still undecided or undisclosed. T3 will possess the highest-quality digital copies of these materials and there is no guarantee that DoD will offer them to the public online when the 10-year window expires. It's therefore hard to know whether this contract will serve the public interest.
While there's nothing illegal about charging for access to a collection of public domain material, in this case it does feel really wrong and against the public interest. Also, T3Media's claim that "the material will be available for licensing" simply does not make sense. You can't "license" public domain material, because T3Media will have no legal right over that material. It can deny access or provide access, but any license is meaningless. That means that if someone does get access to the collection, they should be able to then redistribute it freely. T3Media might try to claim that its digitization efforts create a new copyright of the work, but courts have rejected
that argument. Merely digitizing a public domain work does not create a new copyright.