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Comparing terms of use

So there’s a new player in the online access to newspapers field as of yesterday. Ancestry.com launched its new Newspapers.com website, joining GenealogyBank.com and NewspaperArchive.com as the major players in the pay-for-play category.

Now The Legal Genealogist isn’t getting into the debate over whether this is a good thing or a bad thing, particularly for those of us who have those über-expensive all-you-can-eat World Explorer subscriptions to Ancestry. You can read all about that in yesterday’s post by DearMYRTLE.1

No, around these parts the concern is always first and foremost a website’s terms of use.

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

So let’s take a quick look at exactly what the terms of use of each of these three websites say they’ll allow a user to do.

• NewspaperArchive.com

“You (or “your” defined by your status as an adult user and/or parent or guardian for any minor which you allow to use the Service) may not modify, copy, reproduce, republish, upload, post, transmit or distribute in any way any amount of material from this site including, but not limited to, all documents, images, written material, code and software. You may download Content from this site for your personal, non-commercial use only, provided you abide by all copyright and other proprietary notices and keep any and all Content intact.”3

• GenealogyBank.com

“You, as an individual visitor to this site (the “Site”), and subject to paying the applicable fee(s) to gain access to the Content (As defined under Section 4(a)) available on the Site, are granted a non-exclusive, non-transferable, limited license to browse, search, retrieve, view, print and/or download, the Content on the Site for your personal non-commercial academic, educational and research purposes. Printing and downloading are further limited to insubstantial portions of the data, for temporary storage. You understand and acknowledge that all use is subject to any additional restrictions and disclaimers that NewsBank or its suppliers publish, from time to time. …

You shall not remove any copyright, trademark or other proprietary notices from the Content or Site, nor shall you distribute, modify, transmit, reuse, re-post, or use any Content from the Site for any public and/or any commercial purpose(s). These limitations apply to all Content on the Site, including but not limited to text, images, applications, computer code, audio and video. Any use contrary to these limitations is a violation of the intellectual property rights of NewsBank and/or its suppliers. …

Consistent with the fair-use provisions of the Copyright Act of the United States, you shall reproduce and/or store only insubstantial portions of the Content, resulting from specific searches for your own personal non-commercial academic, educational and research purposes.”4

• Newspapers.com

“You may access the Website, use the graphics, information, data, editorial and other Content only for personal or professional historical research. Republication or resale of any of the Content or other protected data is prohibited. All Content on the Website, whether protected by copyright, contract rights, or both, is provided to you AS IS for your information and personal use only as permitted through the functionality of the Website. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein. …

Ancestry hereby grants you permission to use the Website according to these Terms of Use. All Users, whether a Visitor, Free Member or Subscriber, agree that they will use the Website for personal historical research only and not for any commercial purpose. Notwithstanding the previous sentence, professional researchers, professional historians and others conducting scholarly research may use the Website within the scope of their professional work. Ancestry does not claim an exclusive right to images already in the public domain that it has then converted into a digital format. However, the Website contains images and 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 of Use, you agree to not reuse these images and 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 Newspapers.com 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 and documents from the Website, you agree to obtain prior written permission from us. Except as provided in this paragraph, you agree that (i) you will not copy or distribute any part of the Website or the Service in any medium without Ancestry’s prior written authorization; (ii) you will not alter or modify any part of the Website or the Service other than as may be reasonably necessary to use the Website or the Service for its intended purpose; and (iii) you will otherwise comply with these Terms of Use.”5

In plain English:

Website Personal
Use?
Professional
Use?
Commercial
Use?
Reposting
Allowed?
GenealogyBank.com Yes No No No
NewspaperArchive.com Yes No No No
Newspapers.com Yes Yes No Some

Clearly, for anybody who’s doing research for others, the terms of use suggest that eventually, when the offerings are more extensive, one of these services is likely to win out over the others.

But for the average individual genealogist, researching and writing and speaking about genealogy, none of these are frankly good enough. The Legal Genealogist simply has no idea why these websites don’t rewrite their terms of use to provide the service that subscribers most assuredly think they’re buying: the right not just to read the material but the right, consistent with copyright law, to use some reasonable small portion of it in our work.

There’s no reason why, for example, all three websites couldn’t make it clear that copyright law doesn’t apply to anything published in the United States before 1923, so all newspapers published before then are in the public domain, and the terms of use should allow people to use, re-post and re-publish some reasonable portion of that public domain material.

Now we all understand that these services don’t want some data miner to come in and scoop up everything they’ve painstakingly collected — that would put them out of business. But hey… how about saying flat out you can use, say, no more than five individual clippings from newspapers that are in the public domain in a blog post or in a presentation or in a book or in an article you’re writing without having to ask permission?

How about terms of use that say use of any material from newspapers that are still under copyright protection is governed by the fair use doctrine of copyright law and not by the terms of use of the website?

And if permission is required for a use, perhaps because of a contract with one of the newspapers, how about a button on the results page linking to a request form?

Come on, folks. Make it easy for us. And do your best to give us what we want.

Because you’re not the only game in town… and there’s always the Library of Congress’ Chronicling America collection of pre-1923 newspapers where the terms of use are, basically, play nice and don’t fight.


SOURCES

  1. Pat Richley-Erickson, “First Look at Newspapers.com,DearMYRTLE (http://blog.dearmyrtle.com : accessed 29 Nov 2012).
  2. Judy G. Russell, “A terms of use intro,” The Legal Genealogist, posted 27 Apr 2012 (http://www.legalgenealogist.com/blog : accessed 30 Nov 2012).
  3. Terms of Use,” NewspaperArchive.com (http://newspaperarchive.com : accessed 30 Nov 2012).
  4. Terms of Use,” GenealogyBank.com (http://www.genealogybank.com/gbnk : accessed 30 Nov 2012). See also Judy G. Russell, “Terms of use: GenealogyBank,” The Legal Genealogist, posted 23 Aug 2012 (http://www.legalgenealogist.com/blog : accessed 30 Nov 2012).
  5. Terms of Use,” Newspapers.com (http://newspapers.com : accessed 30 Nov 2012).
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