A few points to ponder

Ancestry has updated its terms of use effective September 1 for existing users and August 1 for new users and, while there are no big surprises, there are a few provisions that users should know about and factor into their thinking as they use the Ancestry family of websites.

You can find a link to these at the bottom of the home page (and most pages) on each of the three Ancestry websites:

• Ancestry.com
• Fold3.com
• Newspapers.com

But each of the links takes you to the same place, at Ancestry.com, and the terms of use set out there for “the Ancestry family of websites.”¹

Terms of use, remember, are “the limits somebody who owns something you want to see or copy or use puts on whether or not he’ll let you see or copy or use it. These are limits that are different from copyright protection, since the law says what is and isn’t copyrighted and you can own a thing without owning the copyright. So this isn’t copyright law; it’s contract law — you and whoever owns the thing you want to see or copy or use reach a deal.”²

And the things you should know about the changes include:

First, the terms are now uniform across the three websites operated by Ancestry: Ancestry.com; Fold3.com; and Newspapers.com. The only thing that changes depending on which website you’re using is how to contact the company about any issue you’re having with a particular website:

• For Ancestry.com, please call (800) 262-3787, send an email to support@ancestry.com, or visit http://help.ancestry.com/app/home.
• For Fold3.com, please call (800) 613-0181, send an email to support@fold3.com, or visit http://www.fold3.com/contact.
• For Newspapers.com, please call (877) 519-0129, send an email to support@newspapers.com, or visit http://www.newspapers.com/contact.

Second, there has been no significant change in our rights as users to use the content of the websites. We are still allowed to “access the Websites and use the Content only for personal or professional family history research, and download Content only as search results relevant to that research.”³

Ancestry has clarified some aspects of its users’ rights to use the content. It now explains: “For example, the download of the whole or material parts of any work or database is prohibited. Resale of a work or database or portion thereof 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.”⁴

In other words, we can’t copy all of, say, the 1940 census directly from Ancestry and resell it on our own websites, but we’re perfectly free to use any specific census record — or even a subset of records — to illustrate our own family histories or those of clients for whom we may be working.

And it explains that:

Ancestry does not claim an exclusive right to images already in the public domain that it has converted into a digital format. However, the Websites contain images or documents that are protected by copyrights or that, even if in the public domain, are subject to restrictions on reuse. By agreeing to these Terms and Conditions, you agree to not reuse these images or documents except that you may reuse public domain images so long as you only use small portions of the images or documents for personal use. If you republish public domain images, you agree to credit the relevant Ancestry Website as the source of the digital image, unless additional specific restrictions apply. If you wish to republish more than a small portion of the images or documents from any of the Websites, you agree to obtain prior written permission from us.⁵

Note in particular that the terms require two things if we download, print or republish anthing:

• Whenever we download or print an item from one of these websites, we “must retain all copyright and other proprietary notices contained therein.”⁶

• Whenever we republish anything we’re allowed to republish, we “agree to credit the relevant Ancestry Website as the source of the digital image, unless additional specific restrictions apply.”⁷

Third, and this is a big one, we are now much more clearly and directly on the hook for anything we do that ends up getting one of these Ancestry websites sued. The prior terms just said that we would indemnify Ancestry “against all liabilities, claims and expenses that may arise from any breach of this Agreement by you or otherwise as a result of your use of the Services or Website.”⁸

Today, the provision says:

You agree to defend, indemnify and hold harmless Ancestry, its affiliates, officers, directors, employees and agents from and against any and all claims, damages, obligations, losses, liabilities, costs or expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Websites and Services; (ii) your violation of any term of this Agreement; (iii) your violation of any third-party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your User Provided Content caused damage to a third party. This defense and indemnification obligation will survive this Agreement and your use of the Websites and Services.⁹

What that means is that if Aunt Mabel decides to sue Ancestry because you uploaded her copyrighted picture of Uncle Homer wearing a grass skirt, and she wins, you could end up paying not only the full amount of the copyright award and your own legal fees and Aunt Mabel’s legal fees, but all of Ancestry’s costs and legal fees too.

Fourth, any dispute you have with any of these companies now has to be handled through binding arbitration or through a small claims court proceeding in Utah under Utah law.¹⁰ Binding arbitration means no judge, no jury and no right to appeal to a court if you don’t like what the arbitrator did. The only court review of binding arbitration is if you can show that the arbitrator acted illegally, not just stupidly.

For most of us, this doesn’t mean much, since we could still choose to go to the Utah small claims court — and that’s allowed for any claim up to $10,000 in damages.¹¹ I don’t expect most of us would ever have a claim we could even arguably make as users of these websites for more than that amount.

And, finally, one good change is that Ancestry has actually made it easier to cancel a free trial or regular subscription: you can now use email as well as the phone.¹²

Bottom line: there’s not much change here, except to reinforce that we need to be careful about what we upload. Violating someone else’s rights could be very expensive.

SOURCES