Can companies change their terms of use?
Reader Cheryl Brownstein isn’t happy about changes in the terms of use of genealogy websites — AncestryDNA, in particular — that occur long after a user begins using the website.
“Can the company simply change the terms that you agreed to when submitting your DNA several years before they published this change?,” she asks.
Short answer: yep, they sure can.
As long as they do it right.
Now… let’s stop for a minute, back up and make sure we all understand what we’re talking about here.
Terms of use, or terms of service, 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.
The phrase “terms of use” isn’t defined in the old legal dictionaries. The closest they come is the definition of “use” by Black to include “the right given to any one to make a gratuitous use of a thing belonging to another.”1 Wikipedia says terms of use, terms of service and terms and conditions are all the same thing (they are) and defines the phrase as “rules which one must agree to abide by in order to use a service.”2 That’s a pretty fair definition.
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.
So… in the context of a website like AncestryDNA, the terms of use govern whether we can use the AncestryDNA service and, if we do, what rights we’re giving AncestryDNA.
But, you’re thinking, if it’s rules, how can it be considered a contract? Nobody gave you a choice about the rules when you subscribed to a service like AncestryDNA, did they?
Actually, they did. Exactly the same kind of choice we have in a lot of things in life: take it or leave it. When we create an account with one of the many services we use around the web, commercial and non-commercial, there comes a point in the join-up or subscription process where there’s a button or a check box or something. It always says something like the example shown in the graphic below: if we click on it or check the box, we’ve agreed to be bound by whatever the terms of use are. Our choice is to agree, or not use that website.
You may be wondering if these terms of use are enforceable. Easy answer: yep, they sure are. This is just a contract between us as the users and the website and courts enforce these just the way they do any contract. They look for evidence that we knew what the terms were and we agreed to them.
Most websites use the button or check box system. In court cases, it’s called a “clickwrap”3 or “click-through”4 because you can’t get to what you want until you click. And federal and state courts enforce clickwraps all the time.5
They even usually enforce them where you don’t have to specifically click through but the terms are clear on the website page where you sign up; that’s called a “browsewrap.”6
So… once we sign up and we agree to these rules, can a website like AncestryDNA change the rules and enforce the change?
Again, the answer is yep, as long as the company does it with notice, and the notice is clear and unambiguous.7 It’s only if they don’t tell us about the change, or when the changes are mentioned in links in obscure sections of a webpage that users are unlikely to see, that the courts generally won’t enforce the changes.8
But as long as they make it clear that the rules are changing so that we have a choice to keep using the site or leave, that’s generally enough.
In the case of AncestryDNA, the website itself provides specific notice of changes, it announces the changes in its blog9 and it even, sometimes, provides notice by email.
It may not seem fair that a website can change the rules after the fact and present us with a take-it-or-leave choice, but that’s what the law allows.
SOURCES
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1204, “Use.” ↩
- Wikipedia (http://www.wikipedia.com), “Terms of service,” rev. 3 Aug 2017. ↩
- Specht v. Netscape Communs. Corp., 306 F.3d 17, 22 (2d Cir. 2002). ↩
- Vernon v. Qwest Communs., 2012 U.S. Dist. LEXIS 31076 (D. Colo. Mar. 8, 2012). ↩
- See e.g. Kraft Real Estate Invs. v. HomeAway.com, 2012 U.S. Dist. LEXIS 8282 (D.S.C. Jan. 24, 2012); Fteja v. Facebook, 2012 U.S. Dist. LEXIS 12991 (S.D.N.Y. Jan. 24, 2012); United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009); Durrett v. ACT, 2011 Haw. App. LEXIS 767 (Haw. Ct. App. July 12, 2011); Fieldtech Avionics v. Component Control.Com, 262 S.W.3d 813 (Tex. App. 2008); Adsit Co. v. Gustin, 874 N.E.2d 1018 (Ind. Ct. App. 2007). ↩
- See Ticketmaster v. RMG Tech., 507 F. Supp. 2d 1096 (C.D.Cal. 2007); Major v. McCallister, 302 S.W.3d 227, 229-231 (Mo. Ct. App. 2009). ↩
- See Nicosia v. Amazon.com, Inc., 834 F.3d 220, 233 (2d Cir. N.Y. Aug. 25, 2016). ↩
- See Douglas v. United States Dist. Court, 495 F.3d 1062 (9th Cir. 2007), cert. den. 552 U.S. 1242 (2008). ↩
- See e.g. Eric Heath, “Setting the Record Straight: Ancestry and Your DNA,” Ancestry blog, posted 21 May 2017 (https://blogs.ancestry.com/ : accessed 17 Aug 2017). ↩
Very clear explanation; thanks, Judy. So if the website does change its terms and announces such in a clear way, our options are to continue using the site with those terms or not using it. In the case of a site where we have entered and stored data, such as trees and DNA results, we still have the right to remove our stuff when we decide not to abide by the terms. Or not?
Yes, indeed. We can always remove our data. The caveat is, if we’ve already agreed to the research terms (not the regular terms but the additional research projects) and the data has already been used, we can’t remove our data from that part of the service.
Looking at this issue from a different POV,
When we set up our eCommerce website some years ago we were aiming to provide a friendly, efficient, honest, service to the genealogy community. We actually “built” most of our own website and that included writing a “Terms and Conditions” statement. As I already had experience in drafting contracts I was confident enough to actually do it myself. I found there was a lot of conflict between defining T&Cs which would be both “friendly” to the customers were were trying to cater for, but were still “formal” enough to protect us from individuals who were simply out to make trouble (and yes, I’m afraid they do exist).
The consequence, I’m afraid, is that even our T&Cs do not actually reflect the type of environment and service which we want to (and hopefully do) provide on our site.
Having said this, I’m not implying any similarity between ourselves and any of the large Subscription, Genealogy websites. In fact – just the opposite! I don’t think it would be appropriate for me to express my personal opinion of how these types of organization run their businesses in this forum, so I’ll say that my only reason for posting this is to urge people shopping on the Internet to look into the background / reports, on places were they may make purchases (or conduct any other form of interaction) in the same way they would judge a shop or a physical “institution” before doing business with them.
Our experience has been – and still is – that people automatically assume that ALL e-commerce operations on the Internet are “painted with the same brush.” As a, hopefully, ethical web site operatior it is almost impossible to find any forum where this difference can be pointed out (without it appearing as just another “con.”)
I hope that Judy doesn’t object too much to my using her forum in this way, but I’m sure I’ll hear about it if she does! 🙂
A question, I have 2 not used AncestryDNA kits I bought about a year ago… would these be under the NEW AncestryDNA requirements – for person tested and the Administer? Thank you for your comments, GJ.
Judy, I don’t disagree and won’t argue the legal issues with you, but I do believe that AncestryDNA implemented the change in a poor manner when it gave only four days notice before it went into effect. One universally-held belief among genetic genealogists has been to test older generations first and soon. As a result, many of us have bought extra tests to keep on hand to gather samples when we visit those persons. Heretofore, the tester has been able to provide the sample as a “gift” to the genealogist relative who paid for the kit, who then would register it and continue to “own” the sample after the subject’s death. (I liken it to a situation where the older relative may give the family Bible to an interested relative, knowing that her heirs would likely toss it in the trash after her death.) Yet, under the new rules, the tester is denied the right to gift the sample (not her identity, mind you, just a sample of spit), and is instead required to create a DNA account and e-mail, even if the individual does not and never will use the internet. At the person’s death, ownership of that account will fall not to the family genealogist who paid for the test, but to the personal representative, who probably will just start closing accounts (goodbye forever, DNA). Granted, the genealogist may have been given access to the account during the person’s lifetime, but that can be taken away by a total stranger at death. The only way I know that this can be avoided, is if the tester actually creates or amends her will, explicitly leaving the DNA kit to the genealogist. (How likely do you think that will be?) It seems to me that AncestryDNA could have solved the “problem” simply by creating a form allowing the test subject to “give” the sample to the genealogist during her lifetime, so this won’t become a problem at death. I’d be interested in hearing your thoughts. Again, I’m not arguing the law, just looking for a common sense solution that seems to be missing from the action AncestryDNA took last month.
I believe that a simple assignment of rights will fill the bill here, John, but I agree that a form — preferably online — would be a permanent and easy solution.
I agree, but don’t tell me. Tell AncestryDNA. That was not an option they offered to me. The way they handled this change reminded me of just how bad their customer service can be. I spent almost an hour on the phone with a CSR trying unsuccessfully to get a friend’s test grandfathered in. He bought it (at my recommendation) and collected the sample from his aunt in the nursing home before the change was made, but could not register it when he tried because it was literally the day after the new rule went into effect. Remember Ancestry’s threat to destroy the Y-DNA kits a few years back? I am reminded that their goal is to make money, not to create a genealogical resource for the future. As I recall, FamilyTree DNA does accept the type of document that you mention. Not sure about the other companies. Thanks for your response.
I hear you and your views (and those of many others) are being passed on…