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The terms of use control

The announcement this week that the popular website Find A Grave has been sold to Ancestry.com has prompted an outpouring of response from the genealogical community.

FAGOn one side are the contributors, such as a reader who wrote: “I am a top contributor to FAG and am very disturbed by this as I am not nor will I ever be a fan of Ancestry. I believe firmly that genealogy resources should be always available free to anyone that purses their interest in genealogy and family history. This certainly changes my feelings and am not sure as of this time what my future will be with FAG.”1

On other side are the pragmatists, who remind us that few of the contributors “considered who even owned or operated the website. Did any of those volunteers think of how the website was being financed? Who was paying for the computer space? Who was doing the programming? Who maintained the site and upgraded the hardware as the site grew in an astonishing way?”2

Realistically, there isn’t any way to resolve the fundamental differences between these two viewpoints. People who create and contribute resources as a labor of love without compensation surely have a right to control their contributions and what’s done with them… but somebody has to pay the bills if information is going to be made available online.

So the question The Legal Genealogist today reviews is a small subset of the bigger issue. The question here is: what are the contributors’ rights now?

First and foremost, they’re governed by the terms of use of the website. 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.”3

And in the case of Find A Grave, it’s these terms of use that govern not just what the general web-using public can do with all the content — the words and photos and more — that Find A Grave members upload to the site but, more importantly for today’s question, what rights Find A Grave has to that content.

As of today (and since 17 June 2013), the relevant Find A Grave terms read:

By submitting User Provided Content to Find A Grave, you grant Find A Grave a transferable license to use, host, sublicense and distribute your submission to the extent and in the form or context we deem appropriate on or through any media or medium and with any technology or devices now known or hereafter developed or discovered. Except for the rights granted in this Agreement, Find A Grave acquires no title or ownership rights in or to any content you submit and nothing in this Agreement conveys any ownership rights in the content you submit to us.4

So each and every contributor under the terms of use has to agree to let Find A Grave use and show and distribute anything uploaded to the site. It’s a license — your agreement to let the site use your materials.

And the terms of use make it clear that it’s a “transferable license.” Transferable. In other words, yes, absolutely, under the terms of use, Find A Grave is entirely within its rights to take the entire site, or in fact any part of it, and sell it (transfer it) to somebody else. Like, oh, Ancestry.com.

But that provision has to be read with the Frequently Asked Questions:

(Q.) I don’t want to submit my information and then see it for sale here or on another site. Will Find A Grave always remain a free site?
(A.) Find A Grave has been around for over fifteen years. Our stated goal has always been to remain a free site for everyone. We have no plans on changing that. Additionally, we claim no copyright or ‘ownership’ of any photos that are posted to Find A Grave. They remain your property. If we were to turn evil and start charging people to view YOUR photos against your wishes, you would have every legal right to demand that we remove them. But we’re not planning on turning evil, so it shouldn’t be an issue.5

That language — with only one word’s worth of difference — has been on the site for years. In 2008, for example, that particular item read:

(Q.) I don’t want to submit my information and then see it for sale here or on another site. Will Find A Grave always remain a free site?
(A.) Find A Grave has been around for over ten years. Our stated goal has always been to remain a free site for everyone. We have no plans on changing that. Additionally, we claim no copyright or ‘ownership’ of any photos that are posted to Find A Grave. They remain your property. If we were to turn evil and start charging people to view YOUR photos against your wishes, you would have every legal right to demand that we remove them. But we’re not planning on turning evil, so it shouldn’t be an issue.6

So… has anything changed in terms of contributors’ rights with the sale of Find A Grave to Ancestry.com?

No.

The deal as announced includes this statement by Ancestry CEO Tim Sullivan:

We will maintain Find A Grave as a free website, will retain its existing policies and mode of operation, and look forward to working with Jim Tipton and the entire Find A Grave team to accelerate the development of tools designed to make it even easier for the Find A Grave community to fulfill its original mission to capture every tombstone on Earth.7

Two key promises there:

• Ancestry “will maintain Find A Grave as a free website;”
• Ancestry “will retain its existing policies.”

Find A Grave‘s founder Jim Tipton said the same thing:

What will change at Find A Grave?
• The short answer is: nothing. The site will remain free and continue to operate as it has for the last eighteen years. …
Will the site remain free?
• Yes. Find A Grave will continue to remain a free site.
Will Ancestry require you to register or pay to view content on Find A Grave?
• No.
Will contributors still retain copyright ‘ownership’ of their photos?
• Find A Grave plans to continue its focus on honoring user’s privacy and protecting their user generated content. As always, any photos you add to Find A Grave will remain yours and neither Find A Grave nor Ancestry.com will own them.
• The current copyright policies of Find A Grave will remain in place. Contributors will retain copyright over any photos added to Find A Grave. It will still be wrong for someone to ‘steal’ a photo from Find A Grave and post it other websites as if it were their own.
Will Find A Grave submissions still show up on other websites?
• The current copyright policies of Find A Grave will remain in place. Contributors will retain copyright over any photos added to Find A Grave. It will still be wrong for someone to ‘steal’ a photo from Find A Grave and post it other websites as if it were their own.8

The bottom line here is that there’s no reason for any Find A Grave contributor to do anything because of this sale. The site will remain free — answering the concerns of contributors like the reader who wrote in — and its bills will be paid, answering the concerns of the pragmatists.

And lest you think I don’t put my money where my mouth is, let me add this personal note as we all contemplate our options in the wake of this sale: I am personally a Find A Grave contributor. I was promised, as we all were when we contributed to the site, that it would remain free. And only if the site were “to turn evil and start charging people to view (OUR) photos against (our) wishes … would (we) have every legal right to demand that (they) remove them.”

Under this deal as announced, my contributions are staying on Find A Grave.


SOURCES

  1. (Name withheld for privacy), email to the author, 30 Sep 2013; privately held.
  2. James Tanner, “I’ve a feeling we’re not in Kansas any more ,” Genealogy’s Star, posted 1 Oct 2013 (http://genealogysstar.blogspot.com/ : accessed 3 Oct 2013).
  3. Judy G. Russell, “A terms of use intro,” The Legal Genealogist, posted 27 Apr 2012 (http://www.legalgenealogist.com/blog : accessed 3 Oct 2013).
  4. Find A Grave Terms of Use,” Findagrave.com (http://www.findagrave.com : accessed 15 Sep 2013).
  5. “Submitting Information / Creating Memorials,” FAQ 71, Frequently Asked Questions, Find A Grave (http://www.findagrave.com : accessed 3 Oct 2013).
  6. Ibid.; as of 28 Aug 2008, via the Wayback Machine, Internet Archive (http://archive.org : accessed 3 Oct 2013).
  7. Ancestry.com LLC Acquires Find A Grave, Inc.,” Press Releases, posted 30 Sep 2013 Ancestry.com (http://corporate.ancestry.com/press/ : accessed 3 Oct 2013).
  8. Jim Tipton, “Find A Grave/Ancestry FAQ,” Find A Grave (http://www.findagrave.com : accessed 3 Oct 2013).
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