Carl Malamud just shared on Twitter a link to the NARA/Amazon agreement (made available via a FOIA request): http://bulk.resource.org/courts.gov/foia/gov.nara_20070701_from.pdf
The pertinent section is 2.5.2 and the way I read this it appears that if NARA wants to post digital copies on its own website (copies created by the Amazon subsidiary, CustomFlix), then it must pay to purchase a copy of the Digitized Source File on Physical Media. They can then post it on the archives.gov website.
However, note the next to the last two sentences in that paragraph:
The Titles that will be available for such purchase or license are those Titles for which CustomFlix has fully recouped the cost of Ingestion Fees via sales of such Titles. The parties agree that the rates may be reduced or waived at CustomFlix’s discretion, with any such changes being agreed upon in writing.
So, I wonder how many of these films will ever be available for NARA to purchase a copy of and post? How many, do you think, will sell enough DVDs to fully recoup the costs?
Note that NARA was also provided with Proof Copies (see 2.5.1) which it can make freely available in its research facilities. According to the agreement, a researcher may copy any of these films “using their own equipment.” The agreement also states (as if we needed to be reassured) that content obtained by these means is in the public domain.
So, “rogue archivists” have another vehicle for “liberating” these public domain films, but it will take a bit of effort.