Forum:Ancestry's License Restrictions

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The previous discussion was probably getting too long for a single display. So we'll start a fresh page. (For continuity's sake, the rest of the discussion is at Census_pages.

Cliff has replied to Phlox's comments, and has requested that I place it in the forum:

Phlox said, "Nothing you have said is new. What you have reiterated is in fact a very common misconception. Anyway, you are entitled to believe what you want. There are lawyers at Commons' forum that disagree with your POV. The concensus opinion amoungst them is that the images that have been copied from such sources are still public domain. That is the authority I am appealing to. What is the basis for your authority?"

In March 2003, I published a 10-page article (8½ X 11" pages) titled "Copyright History and the Rights of Genealogists" in "Tree Talks", the publication of the Central New York Genealogical Society. In preparation for the article, I studied the subject of copyright almost everyday for a full six months. I am one of the 4-5 people on the Copyright mailing list who give definitive answers. I do not share any "very common misconception," as you stated. I have written much, and many times, to correct common misconceptions.

It appears that you misunderstood my first contribution to this discussion. In it I said, "In my opinion, there can be no copyright on nearly exact images of census pages." That means that I don't believe that Ancestry can copyright its census pages. I know that anything in the public domain remains in the public domain forever. You and I are in agreement about that. The lawyers at Commons' forum will not disagree with my point of view unless they also disagree with yours.

I know enough about copyright to say that we do not have a copyright issue relative to Ancestry's images. It is a matter of licensing. Let us say that I own a book of public domain census images. I keep it on my bookshelf in my house. You come to my front door and ask to see it. Even though it is public domain material, you have no right to see it. However, if I wish I may agree to let you into my house and show you the book. I say to you that if you want to see my book you must go to the back door, knock, and then remove your shoes before entering. If you do not wish to comply, you leave my property. If you agree, you get to look at the book and its census images.

With Ancestry, you are doing a similar thing. They say that you must either agree to their license or go away. They own their copies of the census images, just like I own the book with its census images. Public domain or not, you have no right to see the census images if they don't wish you to see them. You realize that to be true, so you are forced to agree to a rather limited use of the images if you want to ever view them.

When people violate the license agreement with Ancestry, they have broken a legal contract between themselves and Ancestry. If they submit the images to a website, they violate the contract, but the webmaster/website is not also bound by that contract with Ancestry. The images can probably be legally posted on a website, but Ancestry could take legal action against the person who submitted them. Ancestry would almost certainly win. A contract is an agreement between two entities. A third entity is not bound by that agreement. Nevertheless, Wikia should not encourage people to break the law (violate their contract with Ancestry) so that the images they retrieve could be posted by Wiki. I imagine that Wikia's lawyers would agree with that.

Cliff Lamere

Congatulations on your article in a newsletter than I don't believe anyone is familiar with. I am not sure what on what you are attempting to base your authority. Are you a practicing attorney of copyright law?

I know you aren't because again you make the classic error- you can't sign away your rights. You attempt to argue by metaphor- the problem with your analogy is the assumption that you can force someone to agree sign away their rights. You can say that if I come into your house I must sign an agreement to become a slave, and you can show the officer the signed agreement as they cart you off to jail. You assume that if ancestry displays a public domain image to you that via a license agreement they can restrict how that public domain image is copied. They can't. License agreements don't trump copyright law with regard to public domain images. You assume that it can. I have shown you caselaw that says it can't. Ok. You are entitled to your mistaken opinion.

Up to now this has all been speculation and hand waving about a possible violation. What specifically does Ancestry.com state in their usage agreement that attempts to disallow the copying or republishing of public domain images?

Where specifically is there a case where a court has ruled that a public domain image cannot be copied due to a license restriction.

Good luck trying to find a case.

~ Phlox 23:15, 27 September 2007 (UTC)

Please return to Cliff's original post, as it makes clear exactly what Ancestry says. And yes, of course, there probably is no case law specific to the question. Which in turn brings us back to the fact that the suit that you cited does not apply either. On the whole, I believe Cliff's response is concise, precise, and to the point. Bill 23:19, 27 September 2007 (UTC)

"Please return to Cliff's original post, as it makes clear exactly what Ancestry says."

No it doesn't. He doesn't bother to quote anything or deal with any specifics. Nothing. Neither of you have shown anything in the license agreement that says they claim that you can't copy and republish public domain information on their site. You guys haven't even made the case that Ancestry is seeking to constraint our public domain rights through use of their licensing agreements.

Without any facts, without any authority. Sorry Bill, you guys are going to have to rely on facts, not endless speculation and hand waves. ~ Phlox 23:27, 27 September 2007 (UTC)

Well, if you are unable to find it, I guess I can point it out more explicitly for you: What Cliff did was quote the Anecstry license requirement. let me repeat what he quoted:

"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."

I might also ask "What facts are they that you are presenting?" I haven't seen any of those in your discussion beyond the inapplicable Bridgeman vs Corel. I would suggest you take the time to review Bridgeman and Corel and assure yourself that it deals only with copyright issues. Then please show us the discussion on the the Commons where the issue of a license requirement, similar to Ancestry's has been discussed. You say its there. I'd be happy to take you word for it, but I myself in unable to find something dealing with that issue on that site, except in a few isolated instances---certainly not a discussion ad nauseum. I believe you are reading into something what you want to see---which in this case is a probable action that could easily lead this site into trouble. Bill 23:50, 27 September 2007 (UTC)

Again though, the burden of proof is on you. Even if this statement of "Content" applies to public domain images as well as their proprietary database, you have not shown why we are not free to ignore such misleading statements as Commons has made the practice of doing. You have not shown anything in the agreement that allows Commons to retain a copy of the Family.com image as you assert they are permitted to do (but not us). You need to show why they do not run afowl of this statement: "Online or other republication of Content is prohibited except as unique data elements that are part of a unique family history or genealogy." Clearly, Commons is in violation of this. The commons:Image:1870 census Wardlaw2.gif clearly has the watermark Family.com in the middle right side of the page. This copy came from their site, and it is being republished on Commons, and it is not being used as part of a unique family history or genealogy.

YOu have not made your case. We can do as Commons does. Sorry. ~ Phlox 00:22, 28 September 2007 (UTC)

You need to read these comments carefully. You are misunderstanding what you are being told. I presume that's simply carelessness. I am not going to hold you hand and explain every sentence for you, but I will repeat this again. What is currently being done on the Commons is the same as is currently being done here.

I believe the uploads ar currently within the framework of the restrictive Ancestry license. That license, which has been pointed out to you twice now, clearly permits such use as long as it is being done in the context of an individuals personal famly history. What I have tried to explain to you, and which Cliff has clearly articulated is that the license prohibits people from copying substantive portions of the ancestry database and posting them elsewhere. By creating a system of article titles, such as you were proposing, (ie, US Census, State, County, and variations on the theme) I believe you would be creating a system for encouraging people to systematically place ancestry images on this site. That appears to be, and some of your statements seem to support this, an attempt to circumvent Ancestry's license. As Cliff pointed out, that would be breaching their license agreement with Ancestry. We are not going to encourage people people to do this. In fact, we're going to discourage it.

Now, if you would finally care to point to those portions on the Forum that specifically discusses this issue, and in particular where it is clear that someone with a law background has weighed in on the subject, it would be appreciated. Should you choose not to do so, I will have to assume that its because those discussions do not exist in a substantive way on the Commons as you have said they do. Bill 00:42, 28 September 2007 (UTC)

"That license, which has been pointed out to you twice now, clearly permits such use as long as it is being done in the context of an individuals personal famly history."

Perhaps it is obvious to you Bill, but perhaps it is not obvious to anyone else how the commons copy of commons:Image:1870 census Wardlaw2.gif is in the "context of an individual's personal family history".

Commons is clearly in violation of Ancestry's misleading warning, and they ignore it just as Corel ignored Bridgeman's silly attempt to make public domain material proprietary. We can follow established common practice until someone shows us that it is wrong to do so. You have not made this case. ~ Phlox 01:15, 28 September 2007 (UTC)

As I indicated it would seem that you do not really understand the issues here. I'll not explain it further to you, but only point out that if you do not see how someone posting a census image on the commons could be useful for their personal family genealogy, then that would be your problem. And if you choose to proceed with your approach, we'll see how well it works out for you. Bill 01:58, 28 September 2007 (UTC)

Our own words demonstrate who does and does not understand the issues-

The ancestry.com agreement says any republished image must be in "context of an individual's personal family history". I pointed out that the commons image isn't in any such context. It is a simple factual matter whether the image is or is not in the context of a family history. Anyone can click on the link to see that it isn't. It is a simple factual matter whether the ancestry.com restriction on being in the context of a family history means what it says.

But we are asked to take your word for it that Commons is not in violation of this agreement today. For whatever reason, there is a refusal to explain this elementary and obvious contradiction. As I said, everyone is entitled to their POV.

Though I thought it self evident you do seem to need an explanation of what should be fairly obvious to anyone familiar with this site, when examining the census images on the Commons. In point of fact some of those images were placed there by people doing their personal genealogy on this site. I presume others have done the same thing, placing images on the commons for ultimate use elsewhere. That seems perfectly in keeping with the purpose of the common, as virtually everything there is being placed there to support something being done elsewhere. In any case, there does not seem to be any wholesale uploading of Ancestry's images to the Commons, nor any organization of those images that would encourage people to fill in the missing images.

It is well established practice for Commons and Wikipedia communities to feel free to copy any public domain image from any site without regard to usage agreements, licenses or copy warnings that attempt to remonopolize public property. Such warnings are a dime a dozen. Commons and wikipedia contributors ignore them, so should everyone else who contributes here. If anyone wishes to convince folks that this practice should not continue, then they will recieve a interested and fair hearing here. Unsubstantiated speculations are not required. Instead, kindly provide facts and sound legal arguments to back up a position, and if it is convincing, then everyone here I'm sure will abide with it, and anything that falls outside can easily be deleted.

You seem to be intent on establishing a policy for Genealogy based on what I see as a very limited understanding on your part of the issues involved. Bill 12:57, 28 September 2007 (UTC)

~ Phlox 04:20, 28 September 2007 (UTC)

Law and Caselaw of interest

• United States Code/Title 17/Chapter 3/Section 301 This is copyright law passage frequently cited when claims are made that State/ Contract / Trademark law trumps copyright law. The principle is that use of other law cannot be used as an end run around copyright. In Dastar Corp. v. Twentieth Century Fox Film Corp. Fox attempted to use trademark law to control distribution of a film that had passed into the public domain. The verdict was 8-0 against Fox's arguments. This article passage conveys the thrust Scalia's majority opinion:

Allowing such restrictions on a public domain work would, Scalia wrote, "create a species of mutant copyright law that limits the public's 'federal right to "copy and to use"' expired copyrights," and would effectively create "a species of perpetual patent and copyright, which Congress may not do" according to Article One of the United States Constitution.

Bill and Cliff have somehow gotten the idea that even if a person has a federal right to copy and use an image, that this right may be overriden by a site's license or a contract.

No, you always have the right to copy and use an image. What you don't have the automatic right is to get that image from Ancestry. Its probably very convenient to do so, but they are not obligated to let you obtain and redistribute images. They could, for example, choose to deny you service if they feel that you are circumventing their license. I'm sure they have other remedies at hand as well.

It's obvious why Ancestry would want users of their site believe that such an agreement is valid. Such a mutant species of perpetual copyright is a transparent scheme to make an end run around Public domain rights by attempting to use of license agreements to make an illegal contract with the user. Such mutants are, according to the Supreme court in a unanimous decision in the Dastar case preempted by Section 301. Such restrictions on public domain works were not allowed in Bridgeman, and the Supreme court in the Dastar opinion has made it clear that the courts will not tolerate these attempts to remonopolize public domain works. ~ Phlox 10:21, 28 September 2007 (UTC)

And its equally obvious why Phlox would like to have us believe otherwise.

With regard to his statements that this issue has been discussed on the commons, and the right to ignore license requirements is firmly establish there, he's been asked numerous times to provide pointers to the relevant threads. He's refused to do so. That is probably because those threads do not exist, or if they do, contradict what he'd like us to believe is a concensus view on the Commons.

Withregard to the Dastar lawsuit, that's would seem to be a different kind of problem, and does not, I think, have any bearing on this issue, though clearly Phox would have us believe otherwise. In the case of Dastar, the issue was that Dastar had aquired a copy of a film series "Crusade in Europe" whose copyright had been allowed to lapse. Dastar then reissued the work under their own name, presenting it as their own work. The discussion on the wikipedia explains

"The Court reasoned that although the Lanham Act forbids a reverse passing off, this rule regarding the misuse of trademarks is trumped by the fact that once a copyrighted work (or, for that matter, a patented invention) passes into the public domain, anyone in the public may do anything they want with the work, with or without attribution to the author."

That is not what this discussion is about. Ancestry is not claiming a copyright to the census images. They are not attempting to trademark the images. I believe that what they are saying "if you download these images from our site, you have to abide by the following restrictions." Those that do not wish to abide by those restrictions would certainly be able to obtain the images elsewhere, but you can't get them from Ancestry without breaking your agreement with them. Its fairly simple. If you don't want to abide by Ancestry's restrictive license, then don't get your images from Ancestry, get them elsewhere.

Part of the problem here is that there's no case law (that I know of, but I'm not a lawyer) to govern the interpretation of such restrictive licenses. The Dastar case doesn't address the issue, and the Bridgeman case certainly does not address the issue. Until the relevant legislation has been tested in court, and the resulting case law speaks to the question of whether restrictive licenses such as Ancestry do in fact limit the user's use of these materials, this is going to remain a somewhat grey area. In the meantime, I think the conservative approach would be to not foster any practice that would tend to encourage our users to ignore their contractual obligations entered into through their agreement with a restrictive license. If need be, we can establish a formal policy on this point, perhaps asking Wikia to weigh in on the subject. I'd prefer to handle it internally, but if that can't be done, then we will need to go to a higher level and let them decide.

Keep in mind that these restrictive agreements are very common on the internet. Topozone uses one, as does Googlemaps. The USGenWeb also makes certain restrictions on the use of the material that you obtain from their pages. I'm sure there are many others. For my own part, I try to abide by these restrictions. I'm using someone's capabilities to obtain information, and to use those capabilities am willing to accept certain limitations on the use of those materials. Where I'm not willing to accept those limitations I obtain them in other ways. In the case of maps, I'll scan them in myself if I can't get them unstricted in any other way. In the case of text, I'll go to the original work, if its out of copyright, and extract the needed passage. In the case of census images, I'll abstract the information I need, and use those abstracts, (though if I really wanted to, Ancestry's license allows me to use their images in a limited way for my personal genealogy). I believe that's the ethical approach to this.

As I've said several times now, it would make things a lot easier for us if Phlox's views were true, and we could safely ignore such restrictive licenses. I don't think his view is correct, and I don't even think its supported on the Commons. Bill 12:57, 28 September 2007 (UTC)

Back again, but once again, Bill has attempted to evade his burden of proof. Established practice is specifically shown in the case of Commons ignoring Ancestry's illegal warning. It has been shown that Commons is is specific violation of this warning. Bill asserts that somehow Commons is not in violation but gives us no reasons to support his assertion. He has declined to make his case.

It is for interest only to discuss Dastar. In point of fact, contrary to the opinion expressed above, in Dastar, there was not an attempt to claim copyright. Just as Ancestry is attempting to achieve through contract law what they cannot achieve through copyright law, Dastar was forbidden to use trademark law to duplicate a copyright restriction. That is the very meaning of Scalia's words- that such an allowance would allow a second "mutant species" of copyright.

Section 301 of copyright law specifically covers this.

"Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State. "

With it's licensing agreement, Ancestry is attempting to claim a right equivalent to copyright that copyright law does not give them. 301 prohibits that. Tort law does not trump copyright, trademarke law doesn't etc etc etc.

We do not need to base our action on the above. We know for a fact that Commons has ignored Ancestry's restriction. If Bill believes that they are in error, he is free to correct them, but he declines that as well. There is an experienced forum there to vet claims made by people who sincerely think that there is an image that is illegally on Commons.

If Bill believes as he states that Commons is not in violation, he will have to confront the obvious contradiction that the Commons page with the republished Ancestry.com Census page is not "in the context of a family history". We look forward to any reasoned attempt to explain his way out of this quandry.

As I said, attempts to shift the burden of proof is an evasion. We are free to do as Commons does and ignore Ancestry.com's misleading warning. ~ Phlox 16:28, 28 September 2007 (UTC)

I suppose you are speaking on behalf of the commons. Personally, I can find no indication that they have any such policy as you describe. You certainly are not in position to unilaterally estabish policy for this wiki. Again, (third time, I think) the census images that appear on the commons are clearly supportive of someone's personal genealogy. I know so because I know some of the folks who placed those images there, and no that in fact they are using them. Again, if you choose not to read or understand what you are being told, then there can be no basis for a discussion. Bill 16:37, 28 September 2007 (UTC)