Wednesday, October 6, 2010

Can I Freely Copy Public Domain Documents?

Can you freely copy public domain documents? The law probably requires that I disclose to you that I am not a lawyer. Nor do I play one on TV. The following opinions should not be construed as legal advice. They are my own and are probably wrong. I am not licensed to practice law in any state or Caribbean Country.

Oops. I almost forgot. Parts of my body are known by the State of California to cause cancer if lit on fire and stuffed up your nose. Now on to it...

I always cringe when reading articles about genealogy and copyrights. Authors typically explain the convoluted rules concerning expiration of United States copyright protection. I worry that leaves readers unprepared for copyright laws in other countries where they do research. Did you know that some copyrights never expire?

I worry the articles leave readers with the impression that they can freely copy public domain documents from anywhere on the Internet. When it comes to sites like Ancestry.com, it isn't that simple.

Ancestry.com is not so naive as to claim copyright protection of public domain documents. Instead, Ancestry.com uses contract law. Ancestry.com denies you access to its content until you enter into a contract wherein you promise not to take all their stuff.

Yes, public domain documents on Ancestry.com are in the public domain and copyright law does not apply. No, you can’t break your contract without facing legal penalties.

Don’t remember signing a contract? Think back to the check box you clicked when you signed up for Ancestry.com (or other software programs). You click the box indicating your have read the terms and conditions, you pay your money, you use the site. In return, Ancestry.com gives you something of value.

It is my understanding that these actions are sufficient to establish a binding agreement between you and Ancestry.com—at least according to the contract law of the State of Utah. Copyright law is federal. Contract law is state; it can vary from state to state.

I wouldn’t mind a contract law expert commenting on how this works.

  • What if you are under age? Is the contract valid?
  • If you require assistance using a computer, and someone else clicks the box without making you aware of the agreement, are you still bound by it?
  • What if you use Ancestry.com Library Edition? You didn’t enter into the contract. Can you freely copy Ancestry.com’s content?
  • Is the library suppose to do something that restricts how you use Ancestry.com content?
  • The contract (terms and conditions) states that Ancestry.com can change the contract without any notice to you besides changing a date on a webpage. Give me a break. Is such a carte blanche contract term enforceable?

So before you start copying public domain articles from websites, re-read the contract you made with that website.

Next week I’ll point you in the direction of a good, recent series of copyright articles from a lawyer blogger. And I’ll pose another set of questions to anyone willing to comment.

7 comments:

  1. It should also be pointed out that contract law varies from country to country. For example in the UK boilerplate contracts where the party which wrote the boilerplate contract claims to be able to change them at will are almost certainly illegal (at least in business to consumer situations) under the Unfair Terms in Consumer Contracts Regulations 1999, exclusions of liability are illegal in many cases under the Unfair Contract Terms Act 1977 in all contracts and terms which purport to make all decompilation of computer programs prohibited are null and void under the Copyright Designs and Patents Act 1988.

    Another problem which is run into online many times is copyfraud, ie claiming a copyright exists where it does not exist or is more extensive than it really is. For example in the UK the typographical arrangement of a literary, dramatic or musical work is copyrightable for 25 years from date of publication. That means copyright notices in republications of old books like those by Charles Dickens where copyright in the text has long expired can still have a copyright in the typographical arrangement when newly published. However those notices frequently do not say that is is just the typographical arrangement which is under copyright. Another old chestnut is the "all rights reserved" copyright notices which purport to restrict all copying for any purpose and make no mention of fair use (in the US) or fair dealing (in the UK).

    Illegal contracts and copyfraud are significant problems for genealogists as although copying records can breach copyright there are also many situations where people may be scared off copying of records by an illegal contract or copyfraud.

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  2. You piqued my interest in the contract I made when I signed up for ancestry.com, so I looked it up. Here is a copy of the relevant part from the Limited Use LICENSE section: "You are licensed to use the Content only for personal or professional family history research, and may download Content only as search results relevant to that research. The download of the whole or significant portions of any work or database is prohibited. Resale of a work or database or portion thereof, except as specific results relevant to specific research for an individual, is prohibited. Online or other republication of Content is prohibited except as unique data elements that are part of a unique family history or genealogy."

    Like you, I'm not a lawyer, but it seems reasonably clear to me that this license allows me to copy anything from ancestry.com I want as long as it is done in the context of "personal or professional family history research" and as long as I don't download an entire database or a significant portion thereof and as long as I don't try to sell anything I download.

    This makes good sense to me, because otherwise why would ancestry.com make it so easy to download things. Ancestry regularly invites the user to "Save this record about [whomever] to your family tree, your shoebox, or your computer." This is strange language from a provider who, as you claim, requires the user to "enter into a contract wherein you promise not to take their stuff." It rather looks to me that they are not only willing, but anxious, for us to take their stuff and the contract appears to me to allow it.

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  3. The stupid thing about Ancestry.com is then many databases say, "Images may be used only for purposes of research, private study or education. Applications for any other use should be made to …." My view of that is the main terms and conditions over-ride those of individual databases.

    Conflicting terms of use would be another thing where the Unfair Terms in Consumer Contracts Regulations 1999 would probably come into play in the UK.

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  4. For David Newton: I'm not clear on why you consider the quote from ancestry you gave in your second comment as a "stupid thing." How exactly would you like to use ancestry images other than for "purposes of research, private study or education"? And if you do have other uses in mind, have you ever applied to ancestry for permission to use their images in this other way? If so, did they deny permission?

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  5. The reason I consider that quote stupid is that it directly contradicts the main terms and conditions of the site. Those allow the images to be used for genealogical purposes virtually anywhere so long as they are for a person's own research on a given individual.

    The meaning of "research" and "private study" and "education" in copyright law does not include publishing things on an open internet site which the limited use licence paragraph on the Ancestry terms and conditions explicitly allows. The
    Ancestry main terms and conditions also allow resale of their search results in limited cases. That is certainly not "research", "private study" or "education". Contradicting terms and conditions on a website is not good to say the least.

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  6. The LDS Church's New Family Search system has put a great deal of effort into providing API access, as an alternative to the normal HTML user access to their data. Are they alone in that effort, or does Ancestry.com also see a place for that kind of API alternate access to their data?

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  7. Dear API Anonymous,

    I've heard rumor that their is an API available for their historic records. I've never heard anything about their tree data.

    FamilySearch has both, but recently cut off access to their historic records but maintaining access to their tree.

    -- The Insider

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