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Re-publication no-no

You’ve ponied up your $69.95 for an annual GenealogyBank.com subscription, entered your search terms, clicked on the Search button… and there it is. A wonderful little newspaper clipping from sometime back in the 1800s about your family.

So you joyfully download it, attach it to an email to your family, post it on Facebook and Google+ and feature it in your genealogy blog.

Congratulations.

You’ve just violated the terms of use of the GenealogyBank.com website and, if it chose to, the site could terminate your access.

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.”1

And GenealogyBank.com — one of NewsBank, Inc.’s direct-to-consumer genealogy services — has some very particular terms of use that subscribers need to know. Such as:

     • You can only use GenealogyBank “for your personal non-commercial academic, educational and research purposes.”2 This couldn’t be clearer: right at the top of the terms of use, GenealogyBank declares that “This Site is for access and use only by individuals for personal use” and directs others — such as professional genealogists working for clients — to the NewsBank sales department.3

     • You can only download “insubstantial portions of the data, for temporary storage.”4

     • You are not allowed to “distribute, modify, transmit, reuse, re-post, or use any Content from the Site for any public and/or any commercial purpose(s).”5

Now right up front, be aware that NewsBank candidly admits it wrote the terms of use before the days of social media — before Facebook, before Google+, before there were hordes of us genealogy bloggers out there. And Newsbank has promised to revisit the question of reposting a clipping on social media — not with an eye towards liberalizing it, to be sure, but to make sure the terms are clear.6

So exactly what may end up being allowed may change slightly in the near term. As of right now, however, while sharing a link on a social media site to a find you’ve made on GenealogyBank is permitted7 (if you can figure out how to do it given the subscription issues), but uploading even so much as a single image of a news clipping to Facebook or Google+ is not allowed.

And that also means you can’t send the clipping itself to your family in email, you can’t put it in an article you’ve written, you can’t insert it into that book of family history you’re about to send to the printer, and you can’t use it to illustrate a blog post. Not without specific permission of GenealogyBank and, most likely, at least in some cases, payment of a commercial use fee.

The sum total of what you can do, with attribution of the material to GenealogyBank, is — in words undoubtedly written by NewsBank lawyers — “insert minimal and insubstantial amounts of text excerpts from the Site into the individual licensee’s own work (e.g., articles, essays, books, papers, reports, etc.), provided such insertions into individual licensee’s own work shall not prejudice or diminish any opportunity for NewsBank to license the Site to any other customer or potential customer.”8

What that means is, you can transcribe the text of small amounts of what the clipping says and use that, as long as what you do isn’t going to make somebody else less likely to subscribe to get the whole article. So you can’t get around the no-publication restriction by transcribing a bunch of clippings and using the text rather than the images.

The same is true of your right to download “insubstantial portions of the data, for temporary storage.”9 The lawyers’ version is: “’Temporary Storage’ means the storage of data from the Site that would not reasonably substitute for a comprehensive copy of the Site or any of the documents in the Site database and would not prejudice or diminish NewsBank’s advantage in licensing the Site database for commercial gain.”10

In plain English, that doesn’t mean you need to delete the clipping images from your hard drive after you’ve read them and analyzed them. It realistically means you can keep copies of clippings that relate to your own personal family research as long as nobody else is going to be using your copy instead of buying his or her own subscription.

And note the words “the individual licensee’s own work” in all of this. Professional genealogists doing work for clients aren’t supposed to be playing by this set of rules at all, and it would be considered a violation of the terms of use for a professional to use a regular individual subscription to download an image and provide it to a client in a report.

Instead, professionals doing work for clients should contact NewsBank for pricing that would allow them to use their own GenealogyBank.com account for work with their clients. Alternatively, NewsBank would allow a professional to use a separate account, with a separate subscription cost, for each individual client in the client’s name. A one-month subscription currently runs $19.95.11 NewsBank has no problem if professionals bill clients for the actual subscription cost and, of course, for their research efforts, but any mark-up on the subscription itself would be considered commercial use and prohibited.12

Professionals who teach or lecture need “permission from NewsBank … in order to include a clipping during the course of a public presentation or webinar.”13

Other terms of use are standard boilerplate: any user has to obey the copyright and trademark laws;14 your use of the site is at your own risk and there aren’t any warranties;15 and any disputes will be handled by state and federal courts in Florida (and if you get sued, you agree to be sued in Florida) and Florida law applies.16

Bottom-line: GenealogyBank.com under a regular subscription is for individual personal use only, and users may not republish any of the images. And professionals play by a different — and more expensive — set of rules.


 
SOURCES

Note: The clipping image used above was screen-captured from a non-GenealogyBank website and altered for purposes of illustration.

  1. Judy G. Russell, “A terms of use intro,” The Legal Genealogist, posted 27 Apr 2012 (http://www.legalgenealogist.com/blog : accessed 22 Aug 2012).
  2. Terms of Use,” License / Limitations on Use, paragraph 4(a), GenealogyBank.com (http://www.genealogybank.com : accessed 22 Aug 2012).
  3. Ibid., preamble, Note.
  4. Ibid., License / Limitations on Use, paragraph 4(a).
  5. Ibid., paragraph 4(c).
  6. NewsBank Consumer Division to Judy G. Russell, CG, e-mail, “GenealogyBank terms of use,” 21 Aug 2012; privately held by recipient.
  7. Ibid.
  8. Ibid.
  9. Terms of Use,” License / Limitations on Use, paragraph 4(a).
  10. NewsBank to Russell, email.
  11. See the subscription page at Genealogy.Bank for details.
  12. NewsBank to Russell, email.
  13. Ibid.
  14. Terms of Use,” Copyright, Publishers’ Rights, and Trademarks, paragraph 5.
  15. Ibid., Limitations on Liability, paragraph 6, and Exclusion of Warranties, paragraph 8.
  16. Ibid., Violations / Disputes, paragraph 10(b).
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