The NOAO, Public Money and Private Profits – Your Tax Dollars At Work

NASA/JPL-Caltech

NASA/JPL-Caltech

Many of you may not be familiar with the National Optical Astronomy Observatory (NOAO), but I can assure you, the NOAO is familiar with your pocketbook.  By the title of the organization, one might be misled into believing this is a public institution acting in the public interest, but on that point, you would be mistaken.

The NOAO is actually classified as a Federally Funded Research and Development Center (FFRDC).  According to Wiki, there are presently 39 such organizations.  These organizations include the Jet Propulsion Laboratory (JPL), the Lawrence Livermore National Laboratory, the National Radio Astronomy Observatory (NRAO), and other such organizations that most people assume are public entities.

FFRDCs are not publicly owned and operated institutions, they are in fact private entities, which are managed by either a university or consortium of universities, other not-for-profit or nonprofit organization, or an industrial firm.  In the case of the NOAO, they are managed by the Association of Universities for Research in Astronomy (AURA), which is classified as a non-profit corporation.

In most cases, this status as a private entity doesn’t make much difference, but in the case of the NOAO, it does.  Research at the NOAO is funded largely by the National Science Foundation, which is a federal agency.  The bulk of NOAO’s funding (at least 70%) comes from the tax paying public, so one would expect that these organizations would ensure their research findings are turned back over to the public, but that is not the case.

Because the NOAO is classified as an FFRDC, they claim that they are allowed to profit from their research at the expense of the public, while keeping their research private.  The NOAO maintains a copyright policy that requires the licensing of its works for a fee under commercial use.  This licensing system allows the NOAO to profit at the expense of tax payers, and it also serves double-duty as a means of silencing their critics.

Most other FFRDCs follow the same copyright policy as all the other federal institutions.  The copyright policy for federal institutions expressly allows for the commercial use of their works.  Obviously this is because the public paid for the production of the works in the first place, so it would make no sense to then charge the public again for the works that were produced at tax payer expense.  For example, the JPL and the NRAO follow virtually the same copyright guidelines as NASA, which allow for the commercial publication of their works.

This licensing of publicly funded works runs counter to federal regulations governing FFRDCs, which prohibit them from competing with the private sector.  The federal regulations also mandate that the FFRDCs act in the public interest, which would seem to require the open publication of their works. This issue of copyright is distinct from that of classified research, which is kept from the public supposedly for security concerns.

In an email conversation with Suzanne L. Baron Helming, the Procurement Manager for the NOAO, it was related to me that, “NOAO policy allows for the collection of a fee or royalty for use of a copyrighted image by a commercial entity in certain circumstances.”  When asked for her opinion on the NOAOs copyright policy and whether this policy violated federal guidelines, Helming declined to comment.  No denial was forthcoming.

I mentioned earlier that this copyright licensing policy serves double-duty as a means of silencing their critics.  This is because the NOAO can refuse to license their works to documentary film makers that have a problem with the science espoused by the NOAO.  Now whether you agree with the critics or not isn’t the issue, the issue is that the critics should be allowed to use their publicly funded images to make their point.  If their point is illogical or irrational, the NOAO should have nothing to fear.

I became interested in this subject after noticing that the NOAO had issued a take-down notice for a YouTube video that I greatly enjoyed.  When I questioned Helming about this, I received the standard short terse response of, “The Electric Comet video posted on YouTube contained an image created by an NOAO scientist.  This image was used without permission.”

However, since the video was posted for free on YouTube, and the authors published it in an effort to solicit critical reviews of the science presented, the video did not fall under the commercial use guidelines as stipulated in the NOAO’s copyright policy.  This makes their take-down notice highly unusual.  In fact, the first thing one saw when viewing the video was a disclaimer stating that the video was not a finished work, and that the authors had published it in an effort to solicit critical reviews.

Amazingly, AURA states that, ” It is the policy of AURA, consistent with the Cooperative Agreement, after a limited period in which an investigator obtaining data using NOAO facilities has exclusive right to utilize those data for scientific purposes, to make all such intellectual property available for free use by the astronomical community throughout the world.”   So are they suggesting that a science documentary doesn’t fit the definition of “the astronomical community?”  A close look at their policy indicates the Electric Comet video doesn’t even come close to violating their published policy guidelines.

I can’t recall ever seeing the NOAO issue a take-down notice for any of the dozens of videos that use their images on YouTube.  All of those neat solar observatory images you’ve probably seen?  They fall under AURA’s management, which puts them under the same restrictive copyright guidelines.

To me, the take-down notice looked like it was politically motivated.  The researchers at the NOAO wanted to silence their critics, so they issued a take-down notice against this video due to the damning evidence it presented against the majority of their researcher’s theories.  They didn’t like it, so they used their power of copyright to squash it.  The video had generated tens of thousands of views before it was taken down, and was beginning to gain traction with the public.

To sum up here, the NOAO takes public funds to produce private works.  The NOAO then profits at the expense of the public by selling those works and collecting royalties on them.  And the NOAO competes with private observatories in the images market, in direct violation of federal guidelines.  Further, the NOAO appears to have used its power of copyright to silence documentary film makers who are critical of the science it espouses.  All of this strikes me as exceptionally bad form for scientists, and possibly illegal.

I’m a firm believer that science should be conducted openly and without restrictions.  Patents and copyrights impede human progress by granting monopoly privileges to private producers.  Just look at all the money wasted on patent suits between mobile phone producers.  They all end up copying each other anyways, but the reason they keep the patents around is to keep the little guys out of the market.  Samsung can afford to fight Apple and lose, but Joe’s Backyard Mobile doesn’t stand a chance.

Listen to economist and patent attorney Stephan Kinsella explain the horrific damage patents and copyrights cause to our economy:

Update -The producers of the Electric Comet video in question have released a statement on this matter.

Since many folks would like to know:

Our video “The Electric Comet” was taken down by YouTube on July 11, under their automated rules relating to complaints and to reinstatement. Both steps are automated, and we’ve applied for reinstatement. The video should be back in less than ten days. Then, any claims of copyright infringement will require litigation, something we would look forward to considering the huge amount of confusion propagated by a few uninformed Inquisitors.

The complaint was filed by Travis Rector, prodded by Sean Walker. You can see Mr. Rector’s Facebook report here:https://www.facebook.com/travisrector?fref=ts

For us, the problem with this report lies in what Mr. Rector does not tell you—the things you’d need to know for any reasonable assessment of the situation.

1. The Thunderbolts Project video on the Electric Comet is the poster child for fair use. Factual reporting. No commercial interest. Direct implications for the future of comet science. Concentration on challenges to theory. Interdisciplinary education. Huge potential savings, where NASA could be spending billions asking the wrong questions. Lots of images, but no use of any image beyond a few seconds. An ideal fit to the legal definition of fair use.

2. In disregard of the fair use principle Mr. Rector filed a complaint with YouTube. In particular, he violated the YouTube provisions on copyright issues in two ways: He failed to notify us of the issue in advance, as YouTube requires. And he named the claimant as the NOAO, though when we asked for confirmation of his authority to do so neither Mr. Rector nor the NOAO provided anything.

3. The first frame of the video makes clear that it is not the finished product. We didn’t just leave out the credits on images; we left out all of the credits of our own people, from producer and editor down to dozens of contributors. Surely that’s a clue as to where we are in the production process. It is an interim presentation. Anyone wanting to know if we give our best effort to providing credits on images need only look at the Thunderbolts.info website. You’ll find that every Picture of the Day, and every image in the Essential Guide to the Electric Universe, has credit provided. Due to the number of images in the 90-minute documentary, it’s only reasonable to collate credits as we elicit critical scientific responses. Otherwise we’d extend the costly production time by months. No one is being treated unfairly.

4. If any of you have a direct line to Mr. Rector, perhaps you would ask him why he felt justified in violating the explicitly-stated YouTube agreement. By all appearances he has joined with a handful of Inquisitors more interested in waging a war than getting to the truth of a matter. When the video is reinstated, as it will be, ask him to query comet scientists on the accuracy of the material presented. Perhaps they will name a statement or two in the video that needs adjustment (which is the purpose of the present scientific review). Beyond that, the facts stand up exceptionally well—all told, one more reason for the one-way traffic of scientists toward the Electric Universe.

5. When today’s Inquisitors seek to scare off scientists with the word “pseudoscience,” they are only earning contempt from the growing community of working scientists that truly want to know. Wherever the facts are presented on an even playing field, the Electric Universe gains new support, often from leaders in the affected fields. Of this, the latest video is perhaps the best example. The response was amazingly positive and constructive, and that is surely the reason for the Inquisitors’ desperation, as now exhibited—

6. Don’t believe in coincidence. In the previous 4 years, with dozens of videos posted, we had only one copyright notification, submitted according to the rules and resolved in 24 hours. Then suddenly, in one day last week, a flood of criticism was posted with no science whatsoever, just a baseless complaint submitted in violation of the rules, leading automatically to the video being taken down by YouTube. (That is part of the process prior to reinstatement, which is also part of an automated sequence.)

7. More evidence of the desperation: Grown-ups will no doubt chuckle at the goofy reference to the Thunderbolts Project being in cahoots with “big banks.”  BBH is a globally respected financial management group. They don’t finance us; they take instructions from our biggest contributor, protect his funds, offer sound legal advice, and convey contributions to whomever he chooses. He’s been in our corner for decades.

8. And finally, we ask everyone to please note that we simply asked Mr. Rector to withdraw his complaint, since he’d obviously broken the rules. Had he done the honorable thing we’d not be posting this report. Instead, he chose to spread more deception. In matters relating to the Electric Comet video, it is a futile tactic. The video is factually sound and based on discoveries explicitly acknowledged by the best comet scientists.

For the record, we don’t pick fights. Within the comet sciences alone we’ve extended queries in dozens of directions, asking for criticism. But look at the way assorted “skeptical” groups have responded. (You’ll have to take your own odyssey through the Internet circus.) This embarrassment to science will no doubt continue until clear voices within the established institutions insist on reasonable standards of discourse. When the subject is a well researched challenge to orthodoxy, one that growing numbers of accredited scientists find persuasive, the Inquisitors should have no role whatsoever in the process of evaluation. As demonstrated in the present case, they can only react from fear and their only role is to obstruct communication.

David Talbott

  • dnarby

    I wish you hadn’t used Kinsella’s video. While IP certainly is one avenue of abuse/control that is used by the status quo, Kinsella is a thoroughly despicable and dishonest character; you do yourselves no favors by using him to buttress your case.

    I would instead inquire if the agency in question would prefer that you be allowed to use their publicly funded information; or if they would instead prefer you bring their taxpayer-funded activities into question with the GAO, your congressman, CATO, and the public. They may well change their position.

    • http://www.libertariannews.org/ Michael Suede

      Wow, pretty strong words there.

      What has Kinsella done to piss you off so bad?

      I’ve always liked his arguments.

  • Sandor

    Take your pick:

    “First they ignore you; then they laugh at you; then they fight you; then you win.”

    Gandhi

    : “All truth passes through three stages. First,
    it is ridiculed. Second, it is violently opposed. Third, it is accepted
    as being self-evident.”

    Schopenhaur