Elon Musk And SpaceX Just Backed Down From Earlier Promise To Release SpaceX Photos To The Public Domain

from the this-is-disappointing dept

Well, this is very disappointing. Back in 2015, you may recall that there was an effort to get SpaceX to put its photos into the public domain. As you hopefully know, all NASA photos, as works of the US government, are in the public domain — which let us post photos like this one:

But as more and more spaceflight gets privatized, there were concerns that future space photos may increasingly get locked up behind copyright.

After an initial outcry, SpaceX initially agreed to use a Creative Commons license, but one that restricted usage to non-commercial efforts. As we pointed out at the time, that really wasn’t good enough. Why does SpaceX need copyright as incentive to take photographs?

After people pointed this out to Elon Musk, he said that they had a good point and that he changed SpaceX’s policy to dedicate all the photos to the public domain. And that’s how it’s been for over four and a half years.

Until now. As Vice’s Motherboard reports, SpaceX has now gone back to a more restrictive Creative Commons license, one that says no commercial use is allowed. While using CC is better than going all out with full restrictions, this is still a very disappointing move. The company has told reporters that news organizations can still use the images, and many will have to rely on that promise. While Creative Commons has put a lot of effort into “clarifying” what is meant by “non-commercial” in recent years, including highlighting that for profit news orgs should still be able to make use of such works, that’s not really been tested in court.

And, considering that Elon Musk has an occasionally antagonistic relationship with the press, you could see an unfortunate situation in which he decides to go after a journalism organization that upsets him by claiming that they were misusing the “NC” part of the license on a SpaceX photo.

So, once again, we have to ask: why is SpaceX doing this? Why is it going back on Musk’s earlier promise that all SpaceX photos would be in the public domain? Why does SpaceX need the restrictions of copyright as an incentive to take photos? Isn’t just being able to get to space enough incentives to take some photos?

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Comments on “Elon Musk And SpaceX Just Backed Down From Earlier Promise To Release SpaceX Photos To The Public Domain”

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35 Comments
Anonymoussays:

Re: Re: Why?

"Anything done via automation wouldn’t count."

Does that include the automatic light meter and exposure control or does the automation have to initiate the automatic shutter control?
Is any onboard post processing considered to be this automation you refer to?
Does the employee have to use old school film camera that lacks light meter and controlling circuitry?

michaelsays:

Re: Re: Why?

Anything done via automation wouldn’t count.

Totally false. If you put a camera into orbit and it takes pics, you own the copyright on those pics. See also: trail cameras. They are totally automated. The only thing the owner does is mount the camera to a tree, but he still gets copyright.

You may be being confused by the monkey case. But there, the monkey pushed the button to snap the photo, and monkey’s can’t have copyright.

Anonymoussays:

Re: Re: Re: Why?

It came up in the monkey case, but the law doesn’t forbid monkeys from having copyright. It says only works created by humans can. From BoingBoing:

The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being. The copyright law only protects ?the fruits of intellectual labor? that ?are founded in the creative powers of the mind.? Trade-Mark Cases, 100 U.S. 82, 94 (1879). Because copyright law is limited to ?original intellectual conceptions of the author,? the Office will refuse to register a claim if it determines that a human being did not create the work. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).

Also see ? 313.2 "Works That Lack Human Authorship" from the source document (PDF):

Similarly, the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.
Examples: ? Medical imaging produced by x-rays, ultrasounds, magnetic resonance imaging, or other diagnostic equipment.

And ? 313.4(B) "De Minimis Authorship":

The term ?de minimis? comes from the legal principle ?de minimis non curat lex,? which means ?the law does not take notice of very small or trifling matters.? As the Supreme Court stated, ?copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity.? Feist, 499 U.S. at 363. Works that contain no expression or only a de minimis amount of original expression are not copyrightable

If a photographer moved a spacecraft for non-mission-related reasons to get a great shot, that could be copyrightable. If it’s just data generated with no human intervention as a side-effect of a practical mission, it’s not.

Davidsays:

Isn't the reason obvious?

Transporting people into space is really an expensive payload that few people will be able to afford.

The real money is in transporting phones into space. If all those phone photographs would be in the Public Domain, the market would collapse.

Just think of it: the first space elevator could be designed with a phone-size payload and be available for rental to meagre two-digit millionaires as a selfie stick.

DrZZsays:

All NASA photos are not works of the US Government

A large number of NASA missions are done on contract, for example at the Jet Propulsion Laboratory (JPL). But, JPL employees are not US Government employees. Most people just read the copyright law section that says:

?105 ? Subject matter of copyright: United States Government works
Copyright protection under this title is not available for any work of the
United States Government, but the United States Government is not precluded
from receiving and holding copyrights transferred to it by assignment, bequest,
or otherwise.

but forget to read the definition of a US Government work

A ?work of the United States Government? is a work prepared by an officer or
employee of the United States Government as part of that person?s official duties.

The determining factor is whether the person that would be granted the copyright is a US Government employee, not whether the US Government pays for it. Contractors and grantees are not US Government employees. I bring this up partly because this is a pet peeve of mind, but mostly because assuming everything the US Government pays for is not subject to copyright minimizes the large amount of hard work done at NASA to create the carrots and sticks that cause so many contract missions to make their pictures freely available. It is NOT a simple consequence of copyright law. See here

Anonymoussays:

Re: All NASA photos are not works of the US Government

If the contract that the contractor works under is paid for by the government, they are a government employee. Edward Snowden was a government employee no matter what anyone may say. The fact that the government is trying to get around the bloat that is entrenched with GS employees by creating a subcategory called contractors doesn’t stop them from being employed by and for the government. Some government employees get all of their benefits and pay through third-party contractors, partly to help obscure the spies that do the same. If the government can argue that uber and lyft contractors are employees, the same thing applies to them.

DrZZsays:

Re: Re: All NASA photos are not works of the US Government

It’s kind of true, in that a government contract can demand that the contractor assign any copyrights from the work to the government, but that doesn’t always happen and even if it does, the work is copyrighted and the copyright is owned by the government which can put restrictions on its use. It can get really complicated, but the bottom line is that work the government pays for (but not done by government employees) can be copyrighted and the copyrights are enforced. It has been litigated (I think the most famous case is Schnapper v. Foley, 667 F.2d 102 (D.C.
Cir. 1981), and everyone who has tried to claim that a copyright by a government contractor is invalid due to the "work of the government" clause has lost.

Cdaragornsays:

Re: Re: Re: All NASA photos are not works of the US Government

The point you’re trying to argue and the point everyone else is making including this article are worlds apart from each other.

Yes, a company contracted by the government to create something can assign that copyright to the government and the government can then own the copyright in that thing.

That is NOT the same thing as the government hiring an individual under contract to work for them for a short period of time. That is the same thing as the government using one of its own employees and at that point it cannot hold any copyright in whatever it used that contractor to create.

At the very least the case you cite doesn’t prove this point. It shows an example of the former (contracting a company), not the latter (hiring a contractor and then using them to create the work).

Anonymoussays:

Re: Re: Re: Re: All NASA photos are not works of the US Governme

Yes, a company contracted by the government to create something can assign that copyright to the government and the government can then own the copyright in that thing.

And thus something the government pays for is not in the public domain. The original post stated that ALL NASA photos are in the public domain. That is false. Some are, some aren’t.

That is NOT the same thing as the government hiring an individual under contract to work for them for a short period of time.

Sure, a government employee is an employee no matter how long the employment lasts. But most NASA contractors (for example JPL) are not temporary government employees at all, they are strictly employees of the contractor.

At the very least the case you cite doesn’t prove this point. It shows an example of the former (contracting a company), not the latter (hiring a contractor and then using them to create the work).

I’m not sure exactly what distinction you are trying to make. I’m not sure if there are any examples of someone who becomes an employee by contract. In any event most of NASA contracting is an example of contracting a company, which I think you agree means that any work is not automatically in the public domain.

Anonymoussays:

Why doesn’t everyone understand this? SpaceX launches are really filmed on a sound stage in Nevada. Yes, I know, there is no agreement about whether those shiny boxes under the Tesla cars hold rows of hamster wheels, or the long-suppressed 5000-mile-per-gallon carburetor (plus a pint of gasoline). But we mustn’t let mere technical details get in the way of hallucinogen-driven malice.

OGquakersays:

Re: Boeing, Boeing, Boeing BOEING LIVES!

Thank you for the context. There is good reasons that we have depended on Litton, Ling-Temco-Vought, Thomson-Ramos-Woldrige, Hughes, Chrysler, North-American Rocketdyne et.al. for 70 years.
Convair’s ‘Atlas’, with the first stage built by Energomash in Russia, is taking Americans to the ISS sometime next year, replacing Russia’s Soyuz, built by OKB-1. Orbital Science’s ‘Antares’ (built by Yuzhnoye in Russia) is delivering food to the ISS on and off. McDonald-Douglas’ Delta IV, brought back after mothballed in 2018, is Boeing’s workhorse for the rest of the DOD’s launch requests (& Atlas,having merged with Lockheed). SpaceX is fake.
Market economy/capitalism; cutting down to one suppler, one take-over at a time; that’s so Americana.

P.S. 1,000,000 homes bought by one LLC in the last ten years and held out off the market in Los Angeles: PRESTO: homelessness and rising rents: market economy/capitalism, so Americana.

Anonymoussays:

Re:

I was following some of that case. I am surprised it came out like that.

I guess I don’t know how much about how cox handled its infringement notices. I do know I have never met anyone who has received a notice though because I expected my old landlord to get one before he passed away. He did subscribed to a different ISP.

He left the wifi password to default and everyone used it, including neighbors. It was his router and internet connection to leave the default password on I guess.

Anonymoussays:

Re: Re:

*I was following some of that case. I am surprised it came out like that.

I guess I don’t know much about how cox handled its infringement notices. I do know I have never met anyone who has received a notice though because I expected my old landlord to get one before he passed away. He did subscribe to a different ISP however.

He left the wifi password to default and everyone used it, including neighbors. It was his router and internet connection to leave the default password on I guess.*

I miss my old grammar checker and am tired.

Cdaragornsays:

Re:

Launch yourself into space often, do you?

Obviously SpaceX is free to keep photos it takes to itself if it wants to. The point here is that because it’s so difficult to get photos from space and there’s lots of interest in them and it’s free for anyone who is already in space anyway to take basically as many as they want it would be nice if they’d let everyone use them.

takitussays:

Mindless all-rights-reserved culture

I’d apply Hanlon’s Razor and say that this is the result of Musk’s promise being reviewed with horror by some very shortsighted corporate policy types. "All rights reserved" appears in so many idiotic places that it’s hard not to believe that many people think of "intellectual property" in security terms–if even a small component is left uncopyrighted or untrademarked, the whole system is "vulnerable". Or something.

Samuel Abramsays:

Space should not be privatized?

This is exactly why I feared space travel being privatized as opposed to being run by Nation-states: Private actors have an incentive to copyright, whereas governments (at least ostensibly democratic ones) have an incentive to put the space images in the public domain. The fact that NASA’s space achievements are in the public domain meant great things for culture and society: it meant that I could:
-go on a cruise ship and see a photo of Saturn there
-see museum exhibits about space
-watch Apollo 11 NASA footage anywhere I wanted
-use the space photographs as album art

And the list goes on and on. These are things I couldn’t do without a license as far as private space travel is concerned. This is why I feared the idea, even at the time when mainstream culture embraced Elon Musk and private space travel. Hopefully people will wake up to it.

Samuel Abramsays:

"noncommercial" clause not been tested in court?

BTW, Mr. Masnick, you made this claim:

While Creative Commons has put a lot of effort into "clarifying" what is meant by "non-commercial" in recent years, including highlighting that for profit news orgs should still be able to make use of such works, that’s not really been tested in court.

However, you provided no court cases to back up what you’re saying. Care to educate me?

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