Tuesday, July 1, 2008

More on Ancestry "Ownership" of User Databases

At the SCGS genealogy Jamboree, I attended Cath Madden Trindle's presentation on Sunday morning titled "But It's My Family; Copyright Issues for the 21st Century Genealogist," and learned (perhaps re-learned what I had forgotten) a lot.

One of the attendees near me stated emphatically that "Ancestry owns the copyright on anything that you put there. They can publish any information they have and you can't stop it" (not an exact quote, but that was my understanding of what he said). I mildly disagreed, since I thought that user-contributed content (such as a family tree) was still owned and copyrighted by the user and that Ancestry was licensed to distribute the information.

So I checked The Generations Network Terms and Conditions of Use page (revised 10 January 2008) again today. The two most applicable paragraphs seem to be:

"Ancestry.com License and Terms and Conditions of Use

"Ancestry.com is an Internet service (the “Service”) owned and operated by The Generations Network, Inc. ("we", "our" or "us"). "You" or "your" means an adult user of the Service for itself and you as parent or guardian for any minor who you allow to access the Service, for whom you will be held strictly responsible. Your use of the Service indicates that you are bound by this Agreement with us. If you don't agree with any of these terms and conditions, don't use the Service. We may alter this Agreement at our discretion and your continued use after any change indicates your acceptance of that change. If you don't want to be bound by a change, discontinue use of the Service.

"Ancestry.com contains graphics, information, data, editorial and other content accessible by any registered Internet user and similar content which is accessible only to our subscribing members “(the Content)”. Whether in the free section or in the subscription section of the Service, all Content is owned and/or copyrighted by The Generations Network, Inc., or third party providers and may be used only in accordance with this limited use license. Ancestry.com is protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws."

and:

"User provided content

"Portions of the Service will contain user provided content, to which you may contribute appropriate content. For this content, Ancestry is a distributor only. By submitting content to Ancestry, you grant The Generations Network, Inc., the corporate host of the Service, a license to the content to use, host, distribute that Content and allow hosting and distribution of that Content, to the extent and in that form or context we deem appropriate. Should you contribute content to the site, you understand that it will be seen and used by others under the license described herein. You should submit only content which belongs to you and will not violate the property or other rights of other people or organizations. The Generations Network, Inc. is sensitive to the copyright of others. For more concerning copyright issues, view our corporate policy. We will not edit or monitor user provided content, with the exception that, to promote privacy, an automated filtering tool will be used to suppress, and omit from display, information submitted to the tree areas of the site which appears to pertain to a living person. We also reserves the right to remove any user provided content that comes to our attention and that we believe, in our sole discretion, is illegal, obscene, indecent, defamatory, incites racial or ethnic hatred or violates the rights of others, or is in any other way objectionable."

I am not an attorney, so the following is my interpretation as an interested person only - don't quote me, please!

The second paragraph above clearly states that "Whether in the free section or in the subscription section of the Service, all Content is owned and/or copyrighted by The Generations Network, Inc...." Apparently, that applies to all of the content on the web site, including the databases obtained from other providers. Does it include user-contributor databases, as the fellow at the Jamboree stated?

The User provided content paragraph above clearly states that "Portions of the Service will contain user provided content, to which you may contribute appropriate content. For this content, Ancestry is a distributor only..."

That seems clear to me - Ancestry is a distributor, not an owner or copyright holder of information submitted by users to family trees or other databases (such as Rootsweb hosted web pages, mailing lists, message boards, USGenWeb archive pages, etc.). I interpret this to mean that I still own and have copyright protection for the content that I submit to Ancestry/TGN web sites, including Ancestry. I can publish my own work whenever or wherever I want, and I still hold the copyright for the material I have created.

However, this same paragraph also states that "By submitting content to Ancestry, you grant The Generations Network, Inc., the corporate host of the Service, a license to the content to use, host, distribute that Content and allow hosting and distribution of that Content, to the extent and in that form or context we deem appropriate..."

Hmm, this is one of the things that the fellow mentioned - it clearly states that Ancestry/TGN could publish user-contributed information in a book, on a CD or DVD, or on a web page.

One very useful example of how Ancestry/TGN could "use" and "distribute" my submitted content would be to search for terms in the content, find other researchers with the same person(s), create a genealogy report from it (such as the WorldConnect or Ancestry World Tree database reports), etc.

In summary, I believe that I own and have copyright protection for any creative work in my genealogy database that I intentionally submitted to Ancestry.com. Ancestry/TGN could publish the information if they chose to. Am I interpreting these paragraphs correctly?

What about my copyrighted creative work -- my analysis, my original text, my abstracts of documents, etc.? Can they put that in a book or on a CD and sell it? Can someone else - another researcher, who finds it in an Ancestry/TGN database, do that also?

There are other portions to the Ancestry/TGN Terms and Conditions that need to be considered, but I am only addressing the specific user-contributed content issue here.

If a user does not want Ancestry/TGN to be able to use or publish their data for whatever purpose, the T&Cs also notes that "If you don't agree with any of these terms and conditions, don't use the Service."

Our genea-blogging colleague, Craig Manson published has a Geneablogie blog archive for Copyright here - he has discussed many aspects of Copyright Law over the years. Check it out for more information.

Cyndi Howells also has a lot of links on general copyright issue at http://www.cyndislist.com/internet.htm#Copyright.

1 comment:

Craig Manson said...

Randy,

Here are a few thoughts I had when I read your post:

1. People should remember that nobody can claim a copyright as to facts. A good deal of genealogical output is presented as "facts."

2. As to TGN's Terms of Service:

"By submitting content to Ancestry, you grant The Generations Network, Inc., the corporate host of the Service, a license to the content to use, host, distribute that Content and allow hosting and distribution of that Content, to the extent and in that form or context we deem appropriate..."

Hmm, this is one of the things that the fellow mentioned - it clearly states that Ancestry/TGN could publish user-contributed information in a book, on a CD or DVD, or on a web page.


I'm not so sure that the provision cited necessarily would allow TGN to publish user-contributed content anywhere except on the Internet. The TOS begins by stating that "Ancestry.com is an Internet service," not that it is a general publisher.

3. As to User-contributed content, TGN says they "will not edit or monitor" it, with some sensible exceptions. I think the reference to "a license to the content to use, host, distribute that Content and allow hosting and distribution of that Content, to the extent and in that form or context we deem appropriate" must mean within the parameters of the site itself--not that they could take some user's content (creative content, that is) and use it as their own. For example, they could not take the creative elements of someone' contributed content and sell the movie rights to that content.

4. It is not true that TGN acquires a copyright in anything a user puts there. The plain meaning of the TOS is that Ancestry is a distributor only and its rights derive from the terms of the license.

5. One very useful example of how Ancestry/TGN could "use" and "distribute" my submitted content would be to search for terms in the content, find other researchers with the same person(s), create a genealogy report from it (such as the WorldConnect or Ancestry World Tree database reports), etc.
I think this is true, considering that what we are talking about here are "facts."

6. In summary, I believe that I own and have copyright protection for any creative work in my genealogy database that I intentionally submitted to Ancestry.com. Ancestry/TGN could publish the information if they chose to. Am I interpreting these paragraphs correctly?

If you provide any content to Ancestry, you lose no copyright protection you may have had, but they may "use, host, distribute that Content and allow hosting and distribution of that Content, to the extent and in that form or context [they] deem appropriate." Again, however, I think there are limits to that use.

And the fine print: The above musings of this particular law professor are intended for educational purposes only and not as legal advice. I am admitted to practice law only in the State of California, the U.S. Supreme Court, and various other federal courts. Anyone with an actual legal problem should consult a lawyer in their local jurisdiction.