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)

Bill, I see what Commons has done with a census page copied from Ancestry.com. That is sufficient. You are making up things about what Ancestry says. Stay factual. They don't say such republished images must be supportive. It says they must be in the context of a family history. Read the words you yourself quoted and claim I do not understand. This image isn't in the context of a family history. Your response? ~ Phlox 17:03, 28 September 2007 (UTC)

Virtually everything on the commons is supportive of something else somewhere---that's the point of the commons. Those images are in fact being used specifically to support someone's family history, either directly or through a link. When that link is in place, or the images have been downloaded from storage and placed on another web page, they are both supportive and in the direct immediate context of someone's family history. The distinction you are making between "supportive" and "context" is simply semantic. What those images are not doing, and this is the key distinction between what appears currently on both the Commons and here, and what you are looking to do (or at least make possible), is to systematically upload a substantial portion of Ancestry's data base. Bill 17:38, 28 September 2007 (UTC)

I urge everyone to stay factual. Here, the statement is made that these "images are are in fact being used specifically to support someone's family history". Yet it is a mere assertion, and nothing was offerred to back up the assertion. Merely asserting something is so doesn't make it so. This link (warning- it takes about 15 minutes to fully execute) [1] shows that this page is not used by any page anywhere on any of the foundation wikis. It's not complicated to get this report. Anyone that was interested in verifying a fact on usage could simple click the "Check usage" tab at the top of the Ancestry.com census page on commons that we have been discussing.

I would urge everyone to kindly refrain from making false statements of fact. In the heat of a discussion on issues this sort of thing happens, and everyone understands that, so let's move on.

Once again Bill. Contributors to this site should boldly follow wikipedia and Common's lead in copying any public domain material whereever we find it regardless of these silly warnings. If you feel differently, the burden of proof is on you to show why Commons can ignore the Ancestry warning message but we can't.

You've not made that case. It isn't even a feeble argument that the Commons usage is valid because it clearly contradicts the Ancestry warning that such usage is only permitted in the context of a family article. It isn't even an unsupported argument, because the truth directly contradicts your assertion of fact that this image is being used by some family article somewhere. It isn't.

It is important to present facts and sound legal arguments if you wish to convince anyone of your mistaken POV that things in the Public domain can have their usage constrained by license agreements. Perhaps on the road to building such an argument and collecting such facts you will instead learn the truth. ~ Phlox 19:59, 28 September 2007 (UTC)

Its easy enough to track that down if you wish. Those who have been around long enough to be familiar with past work on this wiki probably recognize where those images are used. However, if you need help finding the connection I'll be happy to oblige, just as soon as you point to the threads on the discussions in the commons where you think restrictive licenses has been dealt with. That point is critical in your argument, but you have not pointed to them, despite many requests that you do so. Until you do that, I will not address any of your other statements.

I will observe, however, that it is not very important for me to convince you of anything. For you, however, it is important for you to convince myself and others on this list, that your viewpoint is sound. I do not know if anyone else is swqyed by your arguments or not. You certainly have not convinced me. I would add that I'm perfectly willing to be convinced that your view is sound, as it would certainly make like easier for me. But I believe your argumentation on this is fundamentally flawed. We can discuss that when you've complied with the above request. Bill 12:39, 29 September 2007 (UTC)

Further input from Cliff 29 September 2007

In a 1999 case, Bridgeman Art, Inc., held an exclusive license from dozens of art museums to distribute transparencies and license the printing of copies of many of the museums' Old Masters. Bridgeman sued Corel, Inc., claiming that Corel was selling prints that had been copied from Bridgeman's prints. The court held in favor of Corel on several grounds, including the ground that Bridgeman's transparencies were not entitled to copyright because they were photograhphic likenesses of public domain works." --- The Illustrated Story of Copyright - by Edward Samuels (2000)

Phlox has misstated what the Bridgeman case was about. It was a case about copyright, NOT licensing. View the court's decision and you can see that the words license and licensing were not part of the case.

http://www.law.cornell.edu/copyright/cases/36_FSupp2d_191.htm

Corel bought a product and reproduced it. Corel did not sign any license or other contractual agreement with Bridgeman. Yet, Phlox has made the following statements, using the Bridgeman Arts, Inc v. Corel decision to prove his points.

"I stated that proprietary entities cannot infringe on your right to copy materials in the public domain. That's a fact. Such a hypothetical contract would be invalid- it was in the above cited case against Corel." [There was no contract between Bridgeman and Corel]

"Either something is public domain or it isn't. So the question before the court was only whether Corel had the right to copy or whether it didn't. If it did, none of the Bridgeman contract arguments had any legal force." [This is a false conclusion because none of the contracts involved Corel, and the court did not address that subject.]

"Various companies such as Bridgeman have sought to restrict copying of such content through licensing agreements, but the courts have ruled that anyone has the right to copy such material even if they do so en masse and republish it as Corel did." [They did not rule in a case that involved licensing agreements, so the conclusion is incorrect.]

"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." [Actually, you haven't. Bridgeman doesn't apply.]

The court did not rule on the subject of licensing. If Corel had signed a license agreement or contract, the case would have been very different and Bridgeman would almost certainly have won. A contract signed between two parties does not apply to a third party, so any licenses involving Bridgeman did not apply to Corel, and they therefore do not apply to this case. Bridgeman Art, Inc. v. Corel cannot be used to prove or disprove the validity of Ancestry's license agreement with its subscribers.

Phlox said, "If you wish to convince us that this practice of copying any material in the public domain is incorrect, for example that somehow the Ancestry licensing agreements are different in kind from the licensing agreements that entities such as Bridgeman use, then you will need more than the insubstantiated opinion offered by you and your friend."

I believe I have met your requirement. If you don't accept what I have said about Bridgeman Art, Inc. v Corel, then point me to some proof that this case was about licenses. Or, show me something that says that Corel and Bridgeman had a contractual agreement.

Phlox, please don't change the subject. Let's stick with Bridgeman until we can reach an agreement on those facts. No progress can be made until this matter about Bridgeman is resolved.

It is obvious that you know a lot about the subjects in this discussion. If you can agree that licenses were not involved in the Bridgeman case, I'll point you to the complete Ancestry license agreement and we can discuss that if you wish. After that I am willing to learn about the Commons and see what is involved there. So far, I haven't understood your comments on that subject. Without knowing more, however, I think we will be in agreement on some of the things that you said about the images there.

Let's not make this a matter of who is right or wrong, but rather let's find the truth together if we can. To paraphrase you, to do so will require proof rather than just opinion.

Cliff Lamere

Good. I propose however a change of venue for this discussion. If you examine the Commons's republishing of the Census page mentioned above, I think you will agree with me that it is in clear violation of the warning since it is not in the context of any family history. If you feel this is true, nominating the image for deletion will trigger a discussion on the issues you submit. Anyone visiting the page can do this. The outcome of that discussion would be useful proxy for the bulk of concerns expressed about publishing here, and your expenditure of time would serve a far broader audience.

You will see from the licensing discussions on Wikpedia and Commons, that it is about finding the truth. I along with many others there have learned that many of the common sense opinions we have about copyright are false, and that there are extremely complicated issues involved. After learning the truth, I have submitted many images for deletion because they were in violation of copyright. But it is unreasonable to expect that unsupported expressions of opinion or appeals to the authority based on publication in genealogy newsletters is going to be convincing to anyone seriously interested in the subject. Especially those making business decisions know better than to be swayed by such lack of legitimate argument.

I presume by your omission to respond that you are not an attorney of copyright or other intellectual property law. Not that I would hold it against you. Lots of my friends are lawyers. This is a hotly contested area of law among lawyers, and at the end of the day, it will be a judgement call on comfort level. From a business point of view, Ancestry would be foolish to waste money on such a claim. Firstly it achieves no business objective. As I stated earlier, even if genealogy.wikia.com had the entire collections of all censuses that Ancestry did, it would not have the key asset (ability to search them with soundex matching). It would be not only a pointless expenditure of capital, but would risk alienating a community they wish to cultivate. Potential customers will get the impression that they are being fenced in. And actually, it would be a correct impression. But regardless whether it is or not, such information freedom is a hot button issue in the press and it would be a public relations disaster that millions of ad revenue would never recover. So based on cost benefit- no benefit, lots of cost. Why do it. And why should wikia be concerned about issues that may or may not materialize. Ancestry folks have telephones. But we are not here to make the business decision. Unlike Commons, it doesn't matter whether we reach concensus on this issue or not. Wikia management can make the call, or decline to say anything.

So let's move the ball forward, Cliff. What you say about how Bridgeman structured their case is technically correct. Yet Bridgeman is a licensing house. They license images for use by a wide number of publishers including those that made the lithographs used by OWI to create the images sold to Corel. That license was not transferable. It is true that Bridgeman did not base their case on the strength of their licenses- possibly due to their mistaken confidence that their digitization created a new copyrightable work. Many were suprized by the court ruling that it didn't. But there is another reason why they could not use licensing- it's because contract law does not trump copyright law. There are remedies in contract law to go after the indirection used by Corel and OWI, but they didn't. Now, you could say in response that this does not explictly show a court making an affirmative decision that other law doesn't trump copyright law. For that it is true we need to look to other decisions. Is Ancestry.com's making a 301 section prohibited end run around copyright? Please refer to the above unanimous Supreme court judgement that rules against using other law to create mutant copyright law.

Dastar show that trademark law doesn't trump copyright. I believe the justices rested this on the first ammendment, so even 301 is unnecessary. But I think you will find the opposing side refering to 301 for now because it is explicit on the matter.

Anyway, we can go on, but it would probably only benefit a handful of folks if we discuss it in this venue. Kindly consider my proposal to change venue to Commons, and take a look at the Ancestry.com Census page posted on Commons. ~ Phlox 18:52, 29 September 2007 (UTC)

Bill, if it is easy enough to present facts to that back up your so far unsupported statement of "Fact", then it begs the question why you have so stubbornly refused to do so for any of your statements which are in truth only speculations. The fact of how the images are used is fundamental to Ancestry's warning message, and fundamental to your point that Commons is not in violation. You do not bother to present any links to any such use. Though I was not obligated to do so, I have shown that there is no such usage in ANY article on any foundation wiki.

Attempts to shift burden of proof are transparent. I have shown that Commons (and previously Wikipedia from where the census images were transfered) is in clear violation of Ancestry's warning and that they are ignoring it. If you want to change established practice, you are entitled to attempt to, but the burden of proof is on you to show us why we cannot follow wikipedia and commons practice of ignoring such misleading warnings in general, and Ancestry.com's in specific. ~ Phlox 18:52, 29 September

2007 (UTC)

Please provide the links to the discussion on the Commons that supports your assertions about Commons policy concerning matrials obtained where a restrictive license is involved. This point is central to the discussion. Without it no progress can be maade. As I indicated previously I will not respond to further comments until you do so, other than to repeat this message. Bill 00:20, 30 September 2007 (UTC)

Bill, as Cliff pointed out, this is not a contest. Either you do or don't make sense. Either you do or you don't support your argument. I am not the judge of what argument is convincing to folks reading this, neither are you.

The title of this thread is Ancestry's License restrictions. I have shown that Commons is ignoring the Ancestry restrictions that Bill and Cliff has quoted. Bill has provided no reason for us to believe that we cannot follow the lead of Wikipedia and Commons. The burden of proof is on him.

I am not the spokesman for commons. If Bill wishes to hear what Commons' policy is with regard to census images regardless whether a site has attempted to bar copying through licensing restrictions, I have shown him how to learn the truth.

I have proved the specific with regard to census pages, and have even shown how his statements of facts were false. Bill now seeks to move the goal posts. Now we are told that I must now prove the general- that this applies to all sites. The scope of this thread has to do with Ancestry, and I do not need to show (though it is true) that Commons also ignores warnings from other sites such as Corbis. This thread isn't about Corbis.

The census page sited is not in the context of any family article as the ancestry warning requires. Bill has claimed he knows of pages that prove that the images are being used in a manner that makes Common's use permissible. Last we heard, it would be easy to provide these facts.

I guess it wasn't so easy. Much easier to move the goal posts.~ Phlox 02:32, 30 September 2007 (UTC)

This issue is of considerable interest to me, and is I believe of considerable importance for the future operation of this wiki. I would like to know how restrictive licenses affect what we can place on the wiki. Restrictive licenses re just that, restrictive, and they greatly limit what we can do with the information that's commonly available to us, and not just from Ancestry. If such restrictive licenses are in fact non-binding, that's important to know, and we can forumulate policy on this wiki accordingly. If they are in fact binding, as Cliff and I both believe, thats also important to know, and that would also allow us to formulate policy for the wiki accordingly.

A central issue for your argument whether the Commons consideres restrictive licenses such as those required by Ancestry as non-binding. If the Commons has accepted that policy, then that influences how we examine it. While we are not bound by decisions on the Commons, a policy accepted by them would be very influential in with this issue.

The bottom line here is that this is either a policy on the Commons, or simply your interpretation of what should be their policy. If its a stated policy on the Commons that provides some credance to your view. If it is not, your view is simply your view. If you wish to continue the discussion you need to provide the pointers to someplace on the commons where restrictive licensing is discussed and supports your view. If you do not, the conclusion I have to draw is that it is not policy on the commons, and the view you express is simply your view. I see no reason to continue the discussion with you if you are not going to provide that essential source of your justification. You can not demand that others provide information when you yourself refuse. Bill 02:42, 30 September 2007 (UTC)

You made the statement "I know for a fact", and I provided information showing you were untruthful. Sorry, but I have been more than generous with factual statements. You on the other hand claim that facts would be easy to produce but never produce them.

Instead we have more evasion. I have not presented opinion. kettle<>black. I am sure you would love to drag the discussion back into the realm of conjecture, but I have presented facts. The facts are that Commons has an ancestry.com Census page there now, and prior to being on Commons it was on Wikipedia for 2 years.

Now what is this canard about general commons policies. Let's be clear about it. You are making stuff up again when you state I claimed there was some such policy. I never did, nor did I base my argument on anything vaguely similar.

We have Commons practice with census images in front of us Bill. First you say this irrefutable fact doesn't matter because Commons is conformant with Ancestry.com's policy, (a position apparently you no longer wish to defend). Now you claim this irrefutable fact is unimportant unless it is part of some general policy.

We can follow Commons's and Wikipedia's practice of copying any public domain image wherever they reside. Apparently Bill feels that this is not Commons' and Wikipedia's practice. He is entitled to his strange opinion, but of course it would come as some surprize to the contributors to those wikis.~ Phlox 03:42, 30 September 2007 (UTC)

We can discuss how the materials placed on the commons are in fact being used to support the specific family histories of at least some (and I presume all) of the persons who placed them there. If you really need to have those persons and images pointed out to you, we can do that....just as soon as you point to the threads on the Commons that you say support your viewpoint. I need to see those threads in order to evaluate your views.

However, I now notice that you have inserted the term "practice" into your discussion. That would seem to mean tacit agreement that it is NOT formal Commons policy to consider restrictive licenses such as Ancestry to be null and void. If you can not point to specific threads that show that this interpretation of restrictive licenses is in fact formal Commons policy, perhaps you can acknowledge that the authority you are citing is simply "practice" on the Commons. If you can do that, I will show you where some of the people who placed those images on commons are using those, or similar images to support their personal family history. Then we can go forward with the discussion.

Please do not misunderstand something here. I am not implacably opposed to your viewpoint. I would like nothing better than to be unfettered from the limitations imposed by these restrictive licenses. If this is in fact the formal policy of the Commons, then that would be a significant recognition of the right that you feel so strongly about.

In any case, to evaluate your views I have to know whether they are based on formal Commons policy, or simply on Commons practice. So, which is it? Bill 12:16, 30 September 2007 (UTC)

Bill, do whatever you think is necessary to make your point. You stated I claimed it was a Commons policy. I never did. It would surprize me if there were a blanket recommendation anywhere on wikipedia, commons or any other foundation wiki to explicitly ignore licenses or warnings. Consideration of them do come up on a case by case basis, or as part of consideration of a class of image. Such ominous statements from sites take multiple forms- site owners have gotten very creative since Bridgeman. As an aside, recently I learned of one interesting scheme by corbis- they stick a subtle watermark on public images- it uses some claimed proprietary copy protection technology. If the user removes it, they are violating the DMCA. Lots of ways to use laws to try to try to recreate the rights that copyright law says they don't have. Those shenanegins are what Section 301 and Scalia's "mutant species of copyright" words are about. But by far the most frequent is spurious copyright claims. Not just by small sites that don't know any better. Corbis actually is well known for doing this. For a sampling of such comments, see Commons:Deletion requests/Image:Books smoulder in a huge bonfire 1933.jpg. These folks are quite prepared to ignored the warnings based on copyright. Note that the image was in fact deleted because there was no evidence that it was in the public domain, and the PD-usgov claim was clearly wrong.

Anyway, from what I have seen, commons takes information rights very seriously, and if a convincing case is not made to keep an image, the proposed image is deleted. We could make it explicit, and find out for ourselves how Commons decides it, but you seem to think that if someone somewhere on the web links to that census page on Commons, that it satisfies the "in the context of an family history" stipulation. Frankly, it is quite a stretch to see "context" and turn it into "be supportive"- especially when the image is not even on the same site! But as I said, you are free to speak your mind, and the reader may decide for themselves if Ancestry.com could have possibly intended such a meaning or whether it is more likely wishful thinking.

It seems reasonable to me that we should not have to reinvent the wheel, and that it is acceptable to give guidance that it is generally safe to follow practices on Commons and Wikipedia. I propose that wikia management consider whether to approve this statement to be included in upload guidelines:

{| border="1" style="text-align:center; background:#ADDFAD;width:70%; color:black"|-|If in doubt about whether it is legal to upload an image to a wikia, assume that you can't. If you have concerns about site warnings or licensing restrictions that appear to limit your right to copy a public domain image, it is generally a safe assumption that if wikipedia, commons or some other foundation wiki has such an image on their site that it is acceptable to copy it to a wikia. Such practice on Commons or Wikipedia is no guarantee that such an uploaded item will survive a deletion discussion. Such images shall clearly indicate their origin and indicate the permission claimed (PD, PD-old, PD-USGOV, etc.), or they shall be candidates for immediate deletion.|}

Anyway, we can opine endlessly about whether practice is sufficient. As I remarked to Cliff, it is a point of law that is currently in flux, and it could be argued both ways. I'm not being coy, I am aware of the arguments and will outline the opposing position if Cliff doesn't, but it is appropriate that Cliff word it however he chooses. At the end of the day, it is a business decision based on comfort levels and business objectives. In any case, I see no reason why they should spend any of their time worring about it. It may be a non issue that Ancestry would not even send a cease and desist letter over. Until someone does, why wring your hands over it. But it's not my call. ~ Phlox 17:36, 30 September 2007 (UTC)

Very well, then we can end the discussion. The question will continue to exist. Your input has helped frame the depth and breath of the problem. For that I thank you. For myself, I'd prefer NOT to develop formal policy in this area, but I want to keep things above board and ethical. As long as we don't have uploads that could be seen as in conflict with these restrictive licenses under the most strenous interpretation, we should not have a problem. Other information will, I'm sure come in on this question, but at the moment formal policy will not be needed. And of course, if WIKIA ever weighs in on this subject, as I'm sure they will be forced to eventually, then we will know what the answer is. Perhaps, with luck, their position will match yours, simplifying our lives considerably. In the meantime, lets get back to doing genealogy. Bill 23:49, 30 September 2007 (UTC)

Really if Cliff is up for it, I would like to flesh it out over at Commons in the context of discussing the proposed deletion of the Ancestry image(s)- there are probably some more there. An examination of issues should take a closer look at the key legal cases (Feist, Procd, and Dastar), and it is always nice to have someone make a strong case for the opposing POV.

For my part, I actually have been doing genealogy, tracking one branch of the family that (if the records can be believed) back to 14th century england. Some of it looks a little dubious to me, but the original documents may shed some light when they finally show up. Also uploaded several family photos dating from the 1860's. They are Public domain, free for anyone. ~ Phlox 00:03, 1 October 2007 (UTC)

Phlox, please let me know how to get to the discussion about Ancestry on Commons that you mentioned. Do I have to be a member? Thanks. Cliff Lamere

Registering yourself as a user is pretty simple, and you need not log in again. Click the sign in/ create new account button in the upper right of the commons page and click the create new account after putting in the online name you desire. Actually Cliff, you should become one here too- you would be very welcome. Occaisionally, you must tolerate slights (e.g. "newletter") by insolent folks such as myself, but it's part of the territory.

If this presents too many obstacles for whatever reason, I would be happy to repost your rationale in commons and then direct you to the page created for it. If I err in any of the copying of the material, then I or bill can correct it.

an example discussion is here: commons:Commons:Deletion requests/Boldini paintings. Tolfino outlined his reasons at the start of the discussion. Such a page delete can be requested by anyone, even if you are a new user. I don't have any special standing there, so my posting the deletion request doesn't do anything positive or negative. Steps to do it yourself:

1. go to the offending page with ancestry watermark Image:1870 census Wardlaw2.gif.
2. look in the left hand side bar. You will see an item that says something like "nominate this image for deletion".
3. I think it gives you a dialog. Put one or two line summation here. That message will be put as part of the deletion warning message placed on the image. Your full argument goes on the delete request page.
4. I think you are then taken to the newly created delete request page (similar to the above deletion request) for that specific image. Paste your argument full argument there, and the process has begun.

Thanks in advance for any contribution you make. You don't need to present an iron clad voluminous thing at first- there is give an take, and you can state things like "I can elaborate on this point if clarification is necessary", so this doesn't have to be a tome. Though I am confident that I shall make mincemeat of your arguments, what the heck- maybe you will have the correct reasoning. I have been known to commit appalling failures in judgement. Anyway, may the better argument win out. I look forward to an explicit discussion of this sort of end run around Feist. With my luck, they will delete it based not on the legal standing, but based on the idea that no one will use such a page and it is cluttering up Commons. I think it will attract interest though.

It is a deliberative process and so you need not monitor it every day. There is no rush to judgement.

~ Phlox 17:17, 5 October 2007 (UTC)

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Phlox, I finally have been able to create an account here and at the Commons. Please tell me where you would like to continue our discussion about Ancestry; here or there.

I have an interest in a discussion with you, but am not ready to discuss the legality of the census images yet.

Since Bridgeman v Corel didn't relate to licenses, you may no longer object to licenses being a legal way to restrict the use of non-copyrighted census images. If you still object, I'd like to hear your logic, then I'll respond. But, please don't send me multiple objections. Save most of them. Why not just tell me your best objection and we can talk about them one at a time?

As promised, here is the full license agreement with Ancestry.

http://www.ancestry.com/legal/Terms.aspx

According to Google, the following is one definition of license.

1) "a legal document giving official permission to do something"

Here is a pdf article I found. It was written by two people at different colleges. http://www.ala.org/ala/washoff/woissues/copyrightb/PosterEReserves.pdf

"Copyright 101: Everything You Wanted to Know about Copyright But Were Afraid to Ask"

At the right side is a blue box. Its title is, "LICENSING TRUMPS COPYRIGHT." It goes on to say:

"Typically, libraries license rather than purchase electronic information resources. A license is a legal contract between the Library and the Publisher, which means that Copyright does not apply."

Cliff Lamere

--74.76.227.23 06:30, 10 October 2007 (UTC)

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Welcome aboard cliff. You need to log in when you see the numbers 74.76.227.23 being displayed in the upper right hand corner. Click the log in/ create account. I didn't see your name listed in current accounts, so I think you may have skipped the "create an account" part. As you will see, it is a trivial 30 second task. Same deal on Commons. When you do have an account there, click on the link to the possibly offending page in the instructions I outlined shortly above this note. Then propose the deletion, and so on. I will follow this and make my case opposing deletion there, using my Commons account name "Mak". As I intimated earlier, I am aware of the arguments made on the opposite side. It is big bucks and actually a battle that is probably as old as copyright itself. The issue has currency on college campuses precisely because it is hotly debated. Other articles by legal authorites say the notion is nonsense, using language as extreme as Scalia's in calling it a mutant species of law. But let's expose this discussion to a broader audience. If you are correct, then Commons should be made aware of this because more than just these census pages are involved. Could be thousands of images involved. Not a teensy issue in the least. ~ Phlox 21:57, 11 October 2007 (UTC)

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Test of my username. --74.76.227.23 18:46, 16 October 2007 (UTC)

Cliff,

What you are looking for are four of these little critters ~. Exactly what is displayed varies with the number of them you put down. Four of them gets your name signed, with a time date stamp. Bill 18:51, 16 October 2007 (UTC)

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