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It seems to me that the copyright and ownership of historical images and information is legal quagmire that does not lend itself to straight forward answers.

As an example: According to Familysearch Terms of Service:

All material found at this site (including visuals, text, icons, displays, databases, media, products, services, and information) is owned or licensed by us.

and:

You may not post content from this site on another website or on a computer network without our permission.

Now, those quotes were taken from the Familysearch.org website. So, by posting (without permission) this **information" on Stackexchange.com, Have I violated the Familysearch Terms of Service?

I find it hard to imagine that Familysearch would take action against me for this, however it does appear to be a violation of TOS (albeit IMO seems ridiculous).

But the more substantive (and important to amateur genealogists) is that Familysearch claims that information on their site is either owned or licensed by Familysearch and further, information found on their website cannot be posted elsewhere without triggering a TOS violation.

As a practical example, were I to put on a Familysearch tree the birthdate of my father (that is "information"), I would be henceforth restricted on posting the same information on any another website (because Familysearch now avers that they "own" that information.

None of that makes any sense to me; does it make sense to anyone else?

Lastly, and perhaps more significantly, has anyone knowledge of a Familysearch account holder that has been "banned", suspended or prosecuted because they shared information that appears on a Familysearch tree, or Familysearch record search results?

ADDENDUM: I want to be explicitly clear, my question is not posed to be critical of Familysearch. Rather my example of Familysearch's TOS - which if I look carefully, I could probably find similar language in TOS from other services - My question is meant to apply generically to all content providers of genealogical services as well. I ask the question to have an open discussion to provide guidance for amateur genealogists (like myself) as to how to deal with claims of ownership. As I originally said in my opening, the legal landscape is very confusing, but amateur genealogists should not be expected to have to consult their personal attorney every time they want to post or cross- post the date of their ancestor birth/marriage/death.

Additionally, I am interested in any feedback of known prosecution and or retaliation resulting from a violation of TOS as it applies to sharing of information.

6

You seem to be confusing ownership and licensing.

When you submit information to a website such as FamilySearch, you will usually be licensing them the information. The FamilySearch Terms of Use (updated 1 Sep 2018) state:

In exchange for your use of this site and/or our storage of any data you submit, you hereby grant us with an unrestricted, fully paid-up, royalty-free, worldwide, irrevocable, sublicensable, and perpetual license to use any and all information, content, and other materials (collectively, “Contributed Content”) that you submit or otherwise provide to this site (including, without limitation, genealogical data, images, writings, documents, materials, recordings, discussions, information, and data relating to deceased persons or anything else) for any and all purposes, in any and all manners, and in any and all forms of media that we, in our sole discretion, deem appropriate for the furtherance of our mission to promote family history and genealogical research.

They do not and will not own the information you submit. When you license the information to them, you do not relinquish ownership of it.

They cannot own information such as your father's date of birth, but they can of course own the document image of the birth record. There may be licenses in place which restrict the use of that image or a transcription of the information it contains.

In terms of what you can do with data and images from FamilySearch, the terms state:

Unless otherwise indicated, you may view, download, and print materials from this site only for your personal, noncommercial use

Fair use law will likely apply (therefore you are unlikely to be sued for copying with appropriate citation a small amount of data from their website). However, I am no lawyer and do not understand (nor do I really desire to understand) the intricacies of fair use law.

If you are wanting to collect large amount of data and reproduce them online or in other forms, then you may run into legal issues. Copyright law and data ownership law is complex, and will, of course, vary significantly by jurisdiction. If you think you are using the data in an unusual way that might run into these problems then it would be advisable to seek legal counsel.

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  • 1
    As a practical point, it would be impossible to prove that a date came from any particular website. As Harry says, the intention of those ToS is to stop someone scraping the contents of an entire collection for their own website. The problem is that it's difficult to write ToS that make explicitly and exactly clear the distinction btw personal use and small scale commercial use - hence the personal, non-commercial exception. – AdrianB38 Nov 19 '19 at 11:14
  • @AdrianB38 At the outset, did you seek permission to publish the TOS that is on the FS website? Clearly, that is "information". As I said at the outset, the ownership, copyright issues are a legal quagmire that present a real problems for anyone that might operate in both the Familysearch and (as example, Ancestry.com) other environments. This was brought to my attention when I was told by FS agents that their position is that my posting information is "commercial" use - not b/c ** I would** have some commercial profit, but b/c Ancestry profits from my post. – BobE Nov 19 '19 at 14:05
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    Firstly Harry published those ToS not me. Secondly, there are indeed quagmires to do with Terms of Service and Copyright (not sure if "Ownership" is a recognised concept). The biggest quagmire is to do with "Fair usage" which, so far as I can see, is a concept across various legal domains that seems to be dependent on case law that isn't there. Thirdly if you publish your father's DoB on FS and then on Ancestry, if FS Agents have told you that you can't do that then, even though I Am Not A Lawyer, they are talking *****. You have granted them a license to use that DoB, not control. – AdrianB38 Nov 19 '19 at 14:49
  • @BobE Can you provide any more details on what information you were posting, and where you were posting it, that FamilySearch objected to as commercial use? – Harry Vervet Nov 19 '19 at 15:28
  • @AdrianB38, 1st, my apology, question should have been directed to Harry. – BobE Nov 19 '19 at 15:37
4

We start with a very simple statement: Facts can not be subject to copyright

Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed

What that means is that, however you discover it, the date your ancestor applied for naturalisation (indeed, the very fact that they did so) cannot be copyright.

However, the expression of a fact can be copyright. If you write a long blog post about that naturalisation, or include a short event record in your family tree (yes, even on Ancestry) you own the copyright in the form of words you use to describe the fact. (Unless the form of words you use (e.g. Fred Bloggs naturalized on date at place) is so formulaic it can't effectively be copyright, or you copy the exact form of words from somebody else -- in which case, either you use it with their permission and attribute it to them because those words are their copyright, or you're committing plagiarism unless Fair Use applies -- and even then you should attribute the material).

Images are subject to copyright as well, including images of historical documents; the copyright on the image will very often be different to the copyright on the original document. A document can be a few hundred years old and so out of copyright, but an image of it can be a few years old and thus in copyright.

What is Fair Use?

In the US: From What is Fair Use

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work.

This wouldn't seem to apply to reproducing somebody's words verbatim in your own family history, only if commenting upon them/reviewing them in some form.

In the UK: From the British Library

As an exception to British copyright law, fair dealing is governed by Sections 29 and 30 of the Copyright, Designs and Patents Act 1988, which outlines three instance where fair dealing is a legitimate defence:

  • If the use is for the purposes of research or private study;
  • If it is used for the purposes of criticism, review or quotation;
  • Where it is utilised for the purposes of reporting current events (this does not apply to photographs)

Similar provisions exist in Australian law (and possibly elsewhere).

A couple of key elements when judging whether something is fair use: how much of the original is being reproduced (fair use allows limited reproduction, not wholesale copying); and does the use of the work impact negatively on the commercial value of the original?

What about material provided by the online genealogy sites?

Material published online can have an additional layer of complexity: the Terms of Service of the organisation that publish them. The Legal Genealogist is very clear on this: a provider's Terms of Service can prohibit you from reproducing material downloaded from their site elsewhere (including in an online tree on another site) -- either at all or without their permission. And Fair Use doesn't apply when Terms of Service come into play.

It is hard however, to understand how Terms of Service could prevent you from reporting a fact (without substantiating information -- although that makes my genealogist's soul hurt).

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  • Notre: I'm still investigating if Terms of Service can prevent reproduction of facts. – ColeValleyGirl Nov 20 '19 at 12:23
  • The Legal Genealogist thinks it unlikely, but can't cite a supporting positive or negative statement. I have asked FamilySearch direct. – ColeValleyGirl Nov 20 '19 at 14:46
  • Thanks, but on the face of the assertion in the TOS, "All material found at this site... including information.. Is owned..." Seems to be a crystal clear statement. One could argue that the TOS maybe be overly broad. Again, on the face of it, it appears that FS is claiming that they own or license information, regardless of whether or not that same information might appear elsewhere. – BobE Nov 20 '19 at 16:25
  • @BobE "All material found at this site... including information.. Is owned..." Seems to be a crystal clear statement. As clear as mud, which is why I've asked them explicitly If you did the same, please share the results). What exactly is 'information.? – ColeValleyGirl Nov 20 '19 at 16:30
  • sorry thought I had responded several hours ago, but don't see it now. When I asked 'what exactly is meant by "information" - another help desk Agent said - the gist of which was: any text, visual, media, database, and results from database searches. When I asked, how can anyone tell if a birthdate came from a database on the FS or somewhere else, I was told I'd have to prove it didn't come from FS databases. Honestly, I think that the help agents are just saying what they are told to say, regardless if it is rational or not. – BobE Nov 21 '19 at 3:20
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As noted, fair use comes into play and familyseach has added language that addresses use by genealogist and bloggers. Below are two links that discuss the familysearch TOS and fair use. The familysearch terms are way beyond the norm for when compared to other genealogy websites. They require that users give irrevocable and perpetual license to use contributed content for whatever purpose they choose, at any time now or in the future, without limitation, FOREVER. This includes the creation of derivative works and/or sub-licensing for ANY PURPOSE.

http://sorrellnotes.us/2018/09/giving-it-away-forever-the-familysearch-org-terms-of-service/

https://www.legalgenealogist.com/2013/05/13/familysearch-sharing-is-forever/

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