April 17, 2006

The Honorable Lawrence M. Small Secretary of the Smithsonian Institution 100 Jefferson Drive, SW Washington, D.C. 20560

Dear Secretary Small:

We are writing to express our deep concern over the recent announcement of the creation of “Smithsonian Networks,” a joint venture between the Institution’s Smithsonian Business Ven- tures Unit and Showtime Networks.

According to Jeanny Kim, Vice President for Media Services at Smithsonian Business Ventures, filmmakers and researchers who wish to have “more than incidental” access to Smithsonian ar- chives or Smithsonian curators or scientists would have to offer their project to this new busi- ness venture. This policy will discourage independent filmmakers from creating projects for other media outlets. Indeed, this policy will also discourage an independent filmmaker from making a documentary and releasing it on the Internet on a noncommercial basis.

We have several concerns about this new venture. First and foremost, the Smithsonian Institu- tion has refused to disclose the details of this agreement. In a letter to members of the Smith- sonian Institution, a spokesperson states: “This is a business contract that does not involve fed- eral funds. Such contracts are confidential as they contain proprietary information that no com- pany should have to share publicly.”

The Smithsonian Institution is not merely a business venture. It is a publicly chartered guardian of our national heritage, created by the U.S. Congress “for the increase and diffusion of knowl- edge among men.” In your FY2005 Annual Report, you noted that the Institution receives 75% of its revenue from federal appropriations, government grants, and government contracts. The Institution is governed by a Board of Regents appointed from all three branches of our govern- ment. The Smithsonian Institution is a public trust in the truest sense of the term.

The Institution, as a public trust, operates as custodian of our shared heritage. As Secretary Joseph Henry stated in his first annual report in 1847 in considering the role of the Institution in formally accepting the bequest of James Smithson: “The bequest is for the benefit of mankind. The Government of the United States is merely a trustee.”

Because the arrangement with Showtime Networks has raised grave concerns among the pub- lic, we believe it is imperative that the Institution disclose all the details of this contract. The Smithsonian Institution, by subscribing to the “intent and spirit” of the Freedom of Information Act, should keep in mind that the aim of the law is “a general policy of full agency disclosure.” The purpose of that law, as so eloquently stated by Justice Thurgood Marshall is to “ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against cor- ruption and to hold the governors accountable to the governed.” Disclosure of the terms of the contract that establishes Smithsonian Networks goes to the very heart of the “intent and spirit” of the Freedom of Information Act. Secretary Lawrence M. Small, Page 2

While disclosure of the terms of this contract is our first concern, our broader concern is the troubling principle established by the venture of a “right of first refusal.” The prospect of poten- tially requiring that an independent filmmaker, a video blogger on the Internet, a historian, or educator who makes “non-incidental” use of the collections or needs access to staff first present their project for commercial exploitation by this new business venture is an anticompetitive prac- tice that is extremely troubling.

Recent years have witnessed an explosion in the creation of documentary films. Many award- winning films have drawn on our collective heritage as maintained in the archives of the Smith- sonian Institution. Closing off one of the most important collections of source materials and lim- iting access to staff will have a chilling effect on creativity, will create disincentives for digitization of the collections for access by all Americans, and violates the mission and purpose of the Smithsonian Institution.

We ask that you take three actions today:

1. Disclose the terms of the contract with Showtime Networks and any other commercial agreements that limit access or use of the collections.

2. Annul the contract with Showtime Networks, as it was awarded without public comment and without a competitive procurement process.

3. Hold hearings to gather comment from a broad cross section of the public before undertak- ing any further actions that limit access to the collections for which the Smithsonian acts as guardian or limit access to the talented and highly capable staff of the Institution.

Sincerely yours,

Carl Malamud Rick and Megan Prelinger Senior Fellow/CTO Prelinger Archives and Prelinger Library Center for American Progress Lawrence Lessig Vinton G. Cerf Professor of Law Internet Pioneer Stanford University

Gloria Tristani Prudence S. Adler President Associate Executive Director Benton Foundation Association of Research Libraries

Anna Deavere Smith Jacoba Atlas Actress, Writer, Teacher Senior Vice President - Programming New York University PBS

Ken Burns Gigi B. Sohn Filmmaker President Public Knowledge Graeme Revell Film Composer Alex Gibney Director/Screenwriter/Producer Secretary Lawrence M. Small, Page 3

George C. Stoney Patricia Mitchell Goddard Professor of Cinema President & CEO Tisch School of the Arts at NYU The Museum of Television and Radio

David J. Farber John F. Wilson Distinguished Career Professor Co-Chief Programming Executive Carnegie Mellon University PBS

Margaret Drain Jeff Passe Vice President, National Programming President WGBH National Council for the Social Studies

Alexander B. Magoun, Ph.D. Michael Moore Executive Director Filmmaker David Sarnoff Library Shira Lee Katz Mitchell Kapor Doctoral Student President and Chair Harvard Graduate School of Education Open Source Applications Foundation Laurie Kahn-Leavitt Tim O’Reilly Documentary Filmmaker Founder and CEO Filmmakers Collaborative O’Reilly & Associates Douglas Newcomb, CAE Susan W. Lacy Chief Policy Officer Executive Producer, American Masters Special Libraries Association WNET, New York David C. Feingold Paul Vixie Assistant General Manager - Content Internet Pioneer Nebraska Educational Telecommunications

Pamela Samuelson Cory Doctorow Distinguished Professor of Law Novelist/Blogger/EFF Fellow/Fulbright Chair University of California at Berkeley Annenberg Center for Public Diplomacy University of Southern California Shelley Bookspan, Ph.D. President Patricia Aufderheide LifeStory Productions, Inc. Professor and Director Center for Social Media Gary Saretzky School of Communication President American University Princeton Preservation Group Howard Weinberg Lee W. Formwalt President Executive Director The New York Film/Video Council Organization of American Historians Lorie Conway Producer/Writer Boston Film and Video Productions Secretary Lawrence M. Small, Page 4

Peter Jaszi Tom Devine Professor of Law Legal Director Washington College of Law Government Accountability Project American University Jennifer M. Urban Kirby Dick Director, Intellectual Property Clinic Documentary Filmmaker USC Gould School of Law 2005 Academy Award® Nominee Michal Goldman Siarkei Krasikau Filmmaker and President Producer Filmmakers Collaborative

Daniel Blake Smith Jeffrey Chester Professor of History Executive Director University of Kentucky Center for Digital Democracy Phoenix Films, Inc. Sandra J. Ruch Roy Rosenzweig Executive Director Professor of History International Documentary Association George Mason University Jonathan Lawson Anna K. Nelson Executive Director Distinguished Historian in Residence Reclaim the Media American University Dan Gillmor RJ Cutler Director Filmmaker Center for Citizen Media

Maria Agui Carter Thomas J. Simon Writer/Director President Iguana Films Fair Wind Pictures, Inc.

Julie Corley Robin Hessman Filmmaker Filmmaker LifeStory Productions, Inc. Red Square Productions

Nancy F. Cott Jonathan Rintels Trumbull Professor of American History Executive Director Harvard University Center for Creative Voices in Media

Margit E. McGuire Tamara E. Robinson Professor/Past President of NCSS Vice President and Director of Programming Seattle University WNET

Julie Zammarchi Francesca Prada Independent Filmmaker Producer, Director, Writer

Alan Snitow and Deborah Kaufman Snitow-Kaufman Productions Secretary Lawrence M. Small, Page 5

Barbara Attie Juan Mandelbaum Attie and Goldwater Productions President Geovision Charlene Gilbert Associate Professor of Film and Media Arts Linda Harrar American University Producer/Director/Writer Linda Harrar Productions LLC Diane Estelle Vicari President Melissa D. Bucklin International Documentary Association Senior Producer Nebraska Public Television Kent Gibson Executive Director Michael Benefiel Non Fiction Exchange (NFX) Advisor Persuasive Information Catherine Herrera Filmmaker Tom Cappello Crazy Legs Productions James B. Young J.B. Young Photography Debra Zimmerman Executive Director Gerald Jones Women Make Movies Filmmaker Jill Godmilow Lisa Simmons Professor, Filmmaker Film Producer Department of Film, Television & Theatre University of Notre Dame Joyce Appelby Past President, American Historical Assc. Erica Ginsberg Professor of History, Emerita Co-Founder, Docs in Progress UCLA President, CineCitizen Media

St.Clair Bourne Ed and Mary Ann Southern Producer-Director Historian and Librarian Chamba Mediaworks, Inc. Malkia K. Lydia Joanna Rudnick and Gordon Quinn Independent Filmmaker Development Director and President Kuyamba, Inc. Kartemquin Films Frances Reid Rebecca Tabasky Director Outreach Organizer Iris Films Carnivalesque Films Laurel Thatcher Ulrich Brian Newman University Professor Executive Director Phillips Professor of Early American History National Video Resources Harvard University Secretary Lawrence M. Small, Page 6

Johnny Symons Joseph Finneran Independent Documentary Filmmaker Creative Director Group Dynamics Kristine Samuelson Professor Carl Byker Director, Documentary Film & Video Program Series Producer, “The Great War” Department of Communication Producer, “The Duel” and “Woodrow Wilson” Stanford University Robert H. Johnson Nina Gilden Seavey Executive Director Director New Mexico Foundation for Open Govt. The Documentary Center George Washington University Joan Mandell Director Pamela Yates Olive Branch Productions President Skylight Pictures, Inc. Marcia Jarmel and Ken Schneider PatchWorks Films Karen Thomas Executive Producer Megan Mylan Film Odyssey, Inc. Documentary Filmmaker

Joseph Turow Phylis Geller Robert Lewis Shayon Professor President Associate Dean for Graduate Studies Norman Star Media Annenberg School for Communication University of Pennsylvania Paul Atkins Director of Photography Betsy A. McLane, Ph.D. Moana Productions, Inc. Director Emerita International Documentary Association Celia Wexler Vice President for Advocacy Alison Guss Common Cause True Aim Productions Michael Ehrenzweig Paula Manley Independent Film Producer Chair, Board of Directors Assoc. of Independent Video and Filmmakers Deborah Hoffmann Documentary Film Maker Max Alvarez Film Historian, Lecturer, Curator Rick Tejada-Flores Producer JoAnna Baldwin Mallory Film Producer Roger Weisberg Director, Office of New Ventures Producer/Director Partners HealthCare Public Policy Productions Secretary Lawrence M. Small, Page 7

Joseph P. Shannon Susan C. Ivers Producer Independent Media Specialist Real Arts Media Joan Widdifield Jessica Bricker Producer/Director Producer Documentary Films

Robert Stone Maryam Arif Documentary Filmmaker Researcher Robert Stone Productions CNN/ImageSource

Janis Plotkin Elizabeth Thompson Interim Executive Director Producer/Director Film Arts Foundation Thompson Films

Nadia Tomisova Lucie Faulknor MA Candidate Film and Video Producer American University Serendipity Films, LLC

Kenn Rabin Joseph A. DeFrancesco President Documentary Filmmaker Fulcrum Media Service Series Archivist, “Eyes on the Prize” Gene Aanenson President Jesse Boggs North Dakota Council for the Social Studies Independent Producer Former Producer and Host Shirley K. Sneve Radio Smithsonian Director of Radio and Television Native American Public Telecommunications Geoffrey A. Huth Chair David Van Taylor Mid-Atlantic Regional Archives Conference Vice President Lumiere Productions, Inc. Robert Gordon Filmmaker Linda DiFeliciantonio President Anny Lowery Meza Naked Eye Productions, Ltd. Film Editor Richard S. Butler Jay Rosenblatt President Filmmaker High Road Media, Inc.

Steve Mencher Mike Hazard Mensch Media The Center for International Education

Barbara Abrash Janet Cole Producer and Curator Producer Secretary Lawrence M. Small, Page 8

Robert M. Goodman Connie Wilkerson Producer Division of Film Studies Stone Reader University of Utah

Steven H. York Sara Altherr Senior Producer Former PBS Publicist for Documentaries York Zimmerman Inc. David Grubin William Greaves Producer, Director, Writer, Cinematographer Filmmaker William Greaves Productions Kevin Henry Filmmaker Muffie Meyer President Sharon Sachs Middlemarch Films, Inc. Editor

P. Alexander Gibney Kathryn Barnier President Documentary Filmmaker Jigsaw Educational Productions, Inc. David M. Schneider, MD Dianne Cleare Faculty Physician Production Manager Family Practice Residency Program Sutter Medical Center Brian Fulford Senior Licensing Agent Katy Chevigny CNN/Imagesource Arts Engine

Wenonah Elms Cornelius Moore Senior Research Associate California Newsreel LECG Judy Chaikin Julie S. Omelchuck One Step Productions Founding Member Oregon Alliance to Reform Media James Campbell Producer Robert Hillmann Cinergy Media LLC Mateen Kemet Director / Writer Justine Shapiro Runaway filmworX Promises Films The Saul Zaentz Media Center Sharon Wood JAK Films David e. Delk Co-Chair Karen Marek Alliance for Democracy - Portland Chapter Associate Director of Gift Planning KQED, Inc. Ricki Green Producer and Journalist Ever Green Communications Secretary Lawrence M. Small, Page 9

Gene Thomas Matt McDevitt Owner and President Student Lifespan Video Portraits, Inc. University of Iowa

Rena C. Kosersky Jim Hubbard Music Supervisor for Documentaries Filmmaker

Michael C. Donaldson Howard Besser Advocate and Former President Professor and Director International Documentary Association Moving Image Archive and Preservation NYU's Tisch School of the Arts Michelle Peticolas Independent Documentary Producer Dr. Robert Benedetti On the Edge Production Producer, Writer, Educator

Carolina Loyola-Garcia Stephanie Black Assistant Professor Producer/Director Media Arts Department Robert Morris University Joan M. Mathys MJM Picture and Film Research Richard Benjamin Senior Fellow Sheridan Tatsuno Demos Board Member Cinemar Mimi Pickering Appalshop William H. Gilcher Independent Producer Lisa Gottlieb Instructor Jeffrey Friedman Columbia College Chicago Producer-Director Telling Pictures Amy Taubin Contributing Editor Nate George Film Comment Magazine University of Iowa

Megan Simpson Sasha Waters Freyer Director Assistant Professor University of Iowa Lucille Carra Documentary Filmmaker Faye Douglas Johnson Travelfilm Company Interim Director Cinemar Kara van Malssen Audiovisual Archivist Paul Arthur Professor of English and Film Studies James R. Adams Montclair State University History Teacher President Jim McSilver Wisconsin Council for the Social Studies Producer/Editor Secretary Lawrence M. Small, Page 10

Chris Housh Jennifer Jenkins Director/Producer Director Repressed Society Productions Center for the Study of the Public Domain Duke University Law School Lawrence Daressa California Newsreel Ryan Pfleger Independent Documentary Filmmaker Cable Hardin Assistant Director Linda Srivastava Media Arts and Animation Assoc. of Independent Video & Filmmakers The Art Institute of Washington Kembrew McLeod Linda Blackaby Associate Professor Director of Programming Department of Communication Studies San Francisco International Film Festival University of Iowa

June Cross Abigail Porter Assistant Professor Exhibit Developer Graduate School of Journalism Columbia University Jeff Martin Archivist/Documentary Filmmaker Lewis Erskine Film Editor Heather Carawan Filmmaker Abra Bigham Writer and Filmmaker Christopher Klemek, Ph.D. Assistant Professor of History Terry Lamb George Washington History Director Videosyncracy Productions Amanda Benchley Producer Ron Merk Filmmaker J. Mark Wynns Media Consultant John P. King Independent Producer Veronica Selver Vice President Development Documentary Editor, Producer, Director Story House Productions Jenny Toomey Scott Sanders Executive Director Chicago Media Action Future of Music Coalition

Jessie Warner Ray Schmitt Attorney Real Earth Productions

Mark H. Dorfman John H. Terry Environmental Scientist Dean of Fine Arts Rhode Island School of Design Secretary Lawrence M. Small, Page 11

Chana Gzit Karen McMillen Producer Senior Producer Steward/Gazit Productions Northern Light Productions

James Rapp Laurel Kendall Producer/Director Curator Creative Paradigm Productions Anthropology Department American Museum of Natural History Michael Gorman President Lorraine Hess American Library Association Director of Program Acquisitions LinkTV Alfred Hillman and Michal Brand Carr President and Vice President Hillmann & Carr, Inc.

Gerardine Wurzburg President State of the Art, Inc.

Judy Richardson Senior Producer Northern Light Productions

Anthony Radanovich Rural Media Arts and Education Project

Tom Weidlinger Moira Productions

Kathryn Dietz and Sue Williams Producer and Producer/Director Ambrica Productions

Kate Geis Producer

Helen De Michiel and Jack Walsh Co-Directors National Alliance for Media Arts and Culture

Glen Hoptman Executive Producer Lightbeam Studio Institute

Alfred Hillmann and Michal B. Carr President & Vice President Hillmann & Carr, Inc.