Genealogically speaking…
The Legal Genealogist can usually get through 18 months to two years before the issue heats up to boiling again.
But it’s boiling over in some online discussion groups so … once more into the breach…
You know what the issue is.
It’s one that keeps coming up, over and over, throughout the genealogical community.
It’s one that’s been addressed here, more than once, in the past.1
It starts with someone posting an inquiry somewhere online.
It seems perfectly innocent.
It’s just a request for help, and helping is something we do here in the genealogical community, right?
“There’s an Important Document about my family on Subscription Website that I’d like to have but I’m not a subscriber,” the inquiry begins. “Would someone who is a subscriber please get it for me?”
There’s only one honest and ethical answer that can be given to that question:
No.
The simple fact is, it’s wrong.
Just plain wrong.
For the person asking for that Important Document, it’s freeloading.
It’s like asking your neighbor who has high speed cable internet service if you can run your wire to his modem so you can use his service. Or if he’d mind sharing the password to his router so you can use his wireless system.
Pure and simple, it’s taking something without paying for it.
And for the person who subscribes to Subscription Website, it’s no different from taking a pencil from your employer’s stockroom for your friend to use — when you’d never dream of taking a pencil from your employer for yourself.
The fact is, TNSTAAFL.
Which of course means There’s No Such Thing As A Free Lunch.
Not in genealogy any more than in other areas of life.
We may not like it, but it costs money to provide easy online access to a wide variety of documents. Somebody has to pay for acquiring the documents, scanning them, digitizing them, making the equipment and software available to serve them up online.
Subscription Website can only pay for those things if people pay it — fairly and squarely — for the information it provides. To stay in business, it sets terms and conditions for our use of the website.2 These are contract rules, under contract law and not copyright law, so it really doesn’t matter whether the item is in or out of copyright.3
And that contract is what those of us who are subscribers agree to when we sign up. We may not like the terms and conditions; we may whine and moan about the costs.
But that’s the deal, and we’ve agreed to it. Subscription Website is keeping its end of the bargain by making the documents available. We need to keep our end by using the access under the limits set in the terms and conditions.
And those terms often say we can only use Subscription Website for our own research. Sometimes that includes research we’re hired to do for others (which is why you will see documents from Ancestry, for example, in genealogy reports written for clients, because Ancestry’s terms of service allow that), but particularly with some of the online newspaper sites, it’s limited to just our own personal research only.
So before we ask someone to violate the terms of service of Subscription Website, we need to think about the issue in terms of the ethics involved:
Is it right (ethical) to avoid paying for a subscription to a site’s content by asking for a subscriber to locate the content for me?
Just asking the question gives the answer.
No. It’s not right.
Now there is a difference between verifying that the document exists and actually getting a copy of the document. Knowing for sure that the newspaper is available on a particular pay website and that the article is in the paper may be the incentive that pushes me over into subscribing to the site to get that article.
But if I ask you to use your subscription to get me a copy of the article itself?
You know what to tell me. You know I really do have other options. You know I can write to the newspaper. I can go to a library that has the newspaper on microfilm. I can hire someone in that area to track down a physical copy. I can do all the things we as genealogists used to do before there were Subscription Websites, before there even was an internet.
So if I ask, just say no, okay? It’s wrong.
Because, really, we need all those Subscription Websites… and There’s No Such Thing As A Free Lunch.
Cite/link to this post: Judy G. Russell, “Reprise: TNSTAAFL,” The Legal Genealogist (https://www.legalgenealogist.com/blog : posted 20 Jan 2022).
SOURCES
- See, e.g., Judy G. Russell, “Just say no,” The Legal Genealogist, posted 14 Nov 2013, “It bears repeating: just say no,” The Legal Genealogist, posted 5 Nov 2014, and, most recently, “TNSTAAFL,” The Legal Genealogist, posted 11 Dec 2020 (https://www.legalgenealogist.com/blog : accessed 20 Jan 2022). ↩
- For a review of what terms and conditions are and what they mean, see ibid., “A terms of use intro,” The Legal Genealogist, posted 27 Apr 2012. ↩
- For that issue, see ibid., “Contract, not copyright,” The Legal Genealogist, posted 16 Feb 2021. ↩
Genealogy is the only hobby I know of where people expect everything to be free. I’ve even heard people complain about the $5/day fee for nonmembers to use the local genealogical society’s library. Sometimes you still hear that inane quote “Information wants to be free!” Ha. People want free information.
“I want to be a boater. Give me a yacht for free.” Sigh…
I agree 100%. I even left the FB group of a well known national organization because when I contacted admins to tell them it was unethical, I was told I was the trouble maker and there was no problem with such requests. I will agree to check to see if an item is actually available on a subscription site, but if it is, I tell the person he/she needs a subscription to access it themselves or to wait for a free access period.
I would prefer that people phrase these requests as looking for guidance if these documents are on FamilySearch or another free-of-charge site. Then as you suggest, they could be given guidance as to the their other options.
It’s laudable to educate people as to what the correct and ethical answer is. However, your pencil example is too extreme. That’s something that has a real cost, even if it’s 30 cents. The marginal cost of each record pull is a fraction of a cent.
Ancestry.com is worth more than $4 billion, MyHeritage is worth more than $500 million. I gladly pay both of these companies to have access to billions of records from home. However, these companies have the resources to create internal teams to look for people violating their terms of service and to terminate their accounts if they so choose. I do not think we should waste time policing this behavior on behalf of these well-resourced companies. Yes, there are also smaller subscription sites, but these are probably the subject of most requests.
A short sentence of I can’t help you is fine, but responses to these individuals should be proportionate and not make them out to be major criminals.
The pencil to Exxon is the record to Ancestry. In both cases, it’s wrong. No, we don’t need to treat people as criminals when they ask, but people do need to educate themselves as to the realities. Not everything in genealogy is free. FamilySearch isn’t even “free” — the LDS Church and its members pay for it. The rest of us are freeloaders and should be both grateful and respectful of its terms of use as well.
Judy, you’re right about FamilySearch but let’s not forget that there are those who are not Latter-Day Saints who can financially donate to support FamilySearch and/or give back in other ways such as indexing its records. I’m grateful for their service as well.
Also, I wouldn’t call those who use the site “freeloaders.” I would consider that FamilySearch is giving all of us a gift.
Well, then, let’s just say we shouldn’t look that gift horse in the mouth! 🙂
Some of the information genealogy searches use were previously governmental information resources , making them previously available via FOIA requests and virtually FREE. When those resources were sold to or given to private enterprise, there in began a hugely successful genealogy near monopoly.
There is nothing monopolistic about charging for online access to materials, regardless of their source. We’re all free as researchers to go through all the expensive time-consuming steps we used to have to take to get access to materials held by libraries and archives. Or we can pay for someone to provide us easy access at home. One way or the other, the piper has to be paid.
Government records which have been digitised under contract by private organisations are usually in that boat because the owning institution does not have sufficient funding to do the job itself. Speak to your local politicians.
And they were formerly only free if you could access them directly. If they were overseas or interstate, and one was unable to travel, then they were inaccessable, or you could pay someone to go to the institution and view documents. Often there was no provision for photocopying, or records were too fragile, so you had to take it on fith that whomever you paid to view the documents copied them out accurately, or even got hold of the correct document.
One could sometimes ask the owning institution to copy a document or record for you – in many cases you still can. But you pay for that, as someone has to do the work, and the institution provides the wherewithall (photocopiers, paper, scanners, USB sticks, computers to send emails, and so forth) to provide these services. If they didn’t provide such services, they would employ fewer people, and own less machinery etc.
Just because something has been produced by some government body doesn’t mean that access to it should be free. Your taxes, or those paid by the residents of the state or country which produced the records,have paid for the production and preservation of the records. Making them available to the general public is another thing entirely, and indexing, preservation including storage, providing safe access etc requires staff, facilities, and other things which cost $$.
Amen. And again I say, amen.
I get the feeling you were reading my mind.
🙂 🙂 🙂
So if a person posted a question in a group about someone, saying something like, “I can’t find…”, and a person responded with ‘I found it here’…and it happens to be a paid site, the finder, just by telling the person where they found it, is not in violation; but if the finder PROVIDES the document, it will be…right? Or is that considered ‘personal research’ for the finder.
Telling someone where they can find it, even telling them where they can find it for free rather than on a paid site, is just fine. It’s using person A’s access to give free access to person B that’s the issue.
I have always taken a more laissez faire attitude towards sharing content because the terms of service are usually written broadly, and usually do not delineate with much specificity what kinds of sharing is proper. Take Ancestry’s terms in relevant part:
“To use the Ancestry Content only as necessary for your personal use of the Services or your professional family history research;
To download the Ancestry Content only as search results relevant to such research or where expressly permitted by Ancestry;
To keep all copyright and other proprietary notices on any Ancestry Content you download or print;
Not to distribute, republish, or sell significant portions of any Ancestry Content”
What is the meaning of personal research? I doubt there is caselaw about the matter, but from reading the whole section, I take it to mean any use of Ancestry content that is not “significant.” Surely I can research my friend’s genealogy, or my mom’s friend’s genealogy. If I’m on line at the post office and start talking to a stranger, I can look up his family’s records on my phone while we wait and send him a census record. Ancestry even has an option within their content viewer which allows a subscriber to send a specific document to someone via email.
While the social media requests feel more transactional and less personal, I don’t see them as meaningfully different, so long as the requests are not “significant” in number, with the precise meaning of “significant” to be determined presumably by a trial court in Utah at a later date.
I find it hard to believe that based on the wording of this contract, a Court would side with Ancestry if they sought to litigate how close of a “personal” relationship I may have with an individual with whom I am sharing Ancestry content. If Ancestry was interested in preventing the bulk of content sharing that goes on, they could write up terms of service that are much more restrictive, as many genealogy websites do. This is speculative, but my take on matters is that Ancestry knows that the loss of revenue from a random share on facebook is minimal, and believes it is far outweighed by the building of their brand recognition. They are the biggest player in the industry, and when I send someone a document, it’s free advertising.
Some platforms clearly do not have this mentality, as you note. This analysis is specific to Ancestry, but in my experience over the years, the majority of TOS on genealogy sites are written in a manner similar to Ancestry’s, and Ancestry controls the overwhelming majority of genealogy subscription content in the first place.
I think the much more interesting conversation is about the ethics of sharing content, because it mirrors much of what I navigate in my FOIA litigation: both look at who should bare the costs of making records accessible, and my masters thesis looked at this in depth. I vote we save that discussion for over drinks at the next NGS conference…
Your views on this — considering your role in Reclaim the Records — are well known.
Alec makes interesting points. While in general I agree with you, Judy, I wonder. If a novice genealogist on a FB page says, I’m stuck on great grandmother and I can’t find anything about her,” and you volunteer to help find (perhaps even easy to find) census records, as a personal enterprise, is it outside the terms of service to post that census record from Ancestry? Or is pro bono professional work outside the terms of service? If a BCG CG applicant’s research report for a client is pro bono (for a friend, say), is it not allowed to capture images from Ancestry to include in the research report?
Judy… I agree with you 100%. I tend to be moralistic about things. My rule: If it’s for sale and you didn’t pay for it, you stole it.
Judy, “free” is not Free! This is why I have urged genealogy society members to use and appreciate the “Free” sites. The one person operations/blogs, etc. who provide a ton of info but do not charge. Unfortunately, recently the number of Ads on these sites (and on YouTube, etc) has increased by a factor of about 100! I hate the Ads, however, I am able to access the information for Free. Depending on how they are done the Ads range from OK, I can mostly ignore, to just plain Obnoxious! The ones that appear in the middle of the page with numerous pop ups between every paragraph are particularly bad and I have stopped going to one blogger because of this. That being said I do understand that it costs dollars to maintain computers, websites, etc. etc. It is Not Free! Just, please, do not make the Ads so intrusive and annoying that people will leave the site. A fine line I admit.
And Judy, thank you for your Blog, FB page, etc.
I have some sympathy for Alec Ferretti’s point of view. I do see the line as fuzzy and not quite as clear cut as Judy asserts. Let’s take the example of a genealogist working on behalf of a client. If they have a pro subscription to Ancestry or whereever, it is both ethical and permitted within the TOS of most sites for them to look up and download information/documents on behalf of the client. That in part is why pro subscriptions cost more (not just for access to the more obscure collections).
At the amateur level we all like to help others with advice and share our knowledge, but does that mean that because those with whom we interact are not ‘clients’ in the strict sense of the law of agency, we should not carry out the same operation which would be ethical for the client?
I agree with the argument that doing something for someone who could/should do it themself is counter-productive and won’t make them a better genealogist, but having gone to the trouble of looking up a document to verify its existence, is downloading it such a significant step which makes wrong? In terms of a loss to Ancestry there is no quantifiable difference between a lookup and a download, both are ‘using’ the resources of the service provider, and electronically speaking the data is already on our own device anyway as a result of the verification step. It becomes a matter of motive.
I accept that in copyright terms, clicking on the ‘save as’ option is a significant step legally speaking, but in all major jurisdictions the fair use (or equivalent) exception for scholarship or research will apply, and saving the document locally will not make the user liable for copyright infringement.
Given the looseness of Ancestry’s TOS, I think it would be hard to bring a claim based on contract law, unless the activity was demonstrably on a scale which was abusive (cf Southwest Airlines Co v Kiwi.com Inc. Rather than having a bright line rule as Judy advocates, I would look at each case on its merits when deciding how much help to give.
Nuance among people who think all genealogy should be free is useless.
A bit too harsh of an attitude towards others that cannot afford what others have. Calling others names like freeloader is crass.
I have been doing genealogy for about 40 years and at that time I could write to places and get copies free. Today you know what it is like.
We have thousands of free sites and pay and I word hard looking for the free sites to post in my genealogy groups for those that cannot afford sites like Ancestry (which is constantly going up in price).
I pay for ancestry and two newspaper sites and I do assist people that ask. I do not consider them a bunch of lazy freeloaders; I think of it as being kind which is so lacking now days.
I contacted Ancestry about the rules….phoned them in fact twice in the past two years to double check on rules of site to make sure that what I am doing is not going against andy of their rules/laws and both times I was told that since I am paying for Ancestry I may share the information to those that request it. I do not have a business where that is all I do. I will never help to a point of doing that persons tree for them. I will not look up anything for the same person time after time. I will educate them on how to go about looking for this information on free sites or even how they can utilize library ancestry.
Just because we can afford should not mean we have to shove it in their faces that they are less than we are. At my age of 66 one day, probably soon, I will be one of those people that will have to ask and hope to get a bit of help because I had to let my ancestry subscription go
Three words: Ancestry Library Edition. It’s free, and all anybody needs to do is find a local library that has it.
I love this post, and I wish more people would read it! Alas, I found this today: a “Weekly Paid Record Lookup Requests Thread” on Reddit (in the Genealogy subReddit). Here’s the description, which illustrates exactly what is WRONG with it: “It’s Sunday! Post all of your lookup requests here this week, so people who have the appropriate paid record subscriptions can come and browse all of the open requests in one place.” *sigh*
Sigh indeed…