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Next in an occasional series on terms of use

So… once more into the breach, dear friends.

This is the fourth time The Legal Genealogist has visited the terms of use area of Find A Grave, the huge and hugely-popular website with burial information and photos so widely used by genealogists.1

FAG.TOS2Why? Because the terms of use have changed again here in 2014, and despite an effort to clear up any questions it’s clear that folks still have questions about the Find A Grave 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

And in the case of Find A Grave, it’s these terms of use that govern not just what we as part of 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 also what rights Find A Grave has to that content created or contributed by members.

The easy part is Find A Grave’s rights.

When you take a tombstone photo and upload it to Find A Grave, you’re not giving up your ownership of the image or of your copyright (if any) in the image. What you’re giving Find A Grave is “a non-exclusive, transferable, sublicensable, royalty-free, world-wide license for the maximum amount of time permitted by applicable law to host, store, copy, publish, distribute, provide access to and otherwise use such material, including, hosting and access on co-branded services of that material, and to use the data contained in that material as search results and to integrate that data into the Service or other services as Find A Grave or the Group Companies deem appropriate.”3

Let’s break that down.

• A license is a fancy legal word for permission.

Non-exclusive means you can use your images or content elsewhere for your own purposes; your permission isn’t limited to Find A Grave so it doesn’t mean Find A Grave is the only place the photos and content can be used.

• The fact that it’s transferable and sublicensable means that Find A Grave, and its owners at Ancestry.com, can sell the service or give it to somebody else or give permission to someone else to use all of parts of the content. In other words, you’re giving them permission to give permission to someone else.

Royalty-free means they’re not going to pay you. Ever.

And all the other terms in that paragraph let Find A Grave work together with Ancestry and the whole Ancestry family of companies to use the information throughout Ancestry. And, of course, the rest of the terms of use require that we only upload materials we have the right to upload: we can’t violate someone else’s copyright by uploading photos or text we didn’t take or write (unless we have permission to upload).

There’s been no change in Find A Grave’s promise to keep its content free; the FAQs still read that its “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.”4

But Find A Grave does claim what’s called a compilation copyright, and it does limit what people can do with content, and that’s what seems to have folks confused.

Here’s what the terms of use say:

You may access the Websites only personally with an individual browser or mobile device (bots, crawlers, spiders, scraping and other automatic access tools are prohibited), use graphics, information, data, editorial and any other content displayed on or accessible through the Websites (“Content”) only for personal research or scholarly historical research, and download Content only as search results relevant to that research. For example, the download of the whole or material parts of any work or database is prohibited. Resale of a work or database or portion thereof is prohibited. Online or other republication of Content is prohibited except as unique data elements that are part of a unique family history or genealogy. Violation of this limited use license may result in immediate termination of your membership and may result in legal action against you. You may use the software provided on the Service only while online and may not download, copy, reuse or distribute that software. Find A Grave and its licensors retain title, ownership and all other rights and interests in and to all Content, except as expressly set forth in these Terms. This limited license is non-exclusive, not transferable, revocable at all times, royalty-free, global, and limited to the term, purpose and content of this Terms and Conditions. The Websites are protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws.5

Okay. Let’s break that down too.

The first three sentences are aimed at copycats and content scrapers. They’re there to make it crystal clear that you can’t go to Find A Grave with an automated system, download everything that’s there, and package it up and put it on your own website or sell it. You can’t grab a whole cemetery database and copy it. You can’t grab all the entries from a county or a state.

So what does the next sentence mean? “Online or other republication of Content is prohibited except as unique data elements that are part of a unique family history or genealogy.”

It means we can go right ahead and use the information that’s on the website — consistent with any individual copyrights in the images or text — as long as we’re using it for our own personal research or as part of a broader scholarly research project (including work done for a client) and we use it in the context of that research.

Let’s look at two examples.

Say I want to use information from Find A Grave as part of writing the history of my Battles family from Cherokee County, Alabama. There are 32 members of the Battles family whose burial information in Cherokee County is recorded at Find A Grave. Can I abstract that information and use it to help in a proof argument about someone being (or not being) a member of my Battles family? Yes. That’s well within the limits suggested by the license paragraph. And, as long as I don’t violate a contributor’s copyright, I can republish any of that information in a blog post or magazine article or book.

But now let’s say I want to publish a cemetery listing of everyone buried in Cherokee County. There are 158 cemeteries from that one county included in the database. Can I download and copy all that data? No. It has nothing to do with my own unique family history, with my own genealogy. I’m not doing research; I’m just copying.

One more example: now let’s say I want to do a family history of the Battles Family of Alabama. There are 510 entries in the Find A Grave database today of people with the surname Battles who were buried in Alabama.

If all I’m going to do in my family history is copy and paste data from Find A Grave into my history, I’m sailing awfully close to the edge. But if I were assembling the data to show, say, how many Battles men and women were buried in what counties, or how many children in the family died before the age of 5, or how many of the Battles men fought on which side of which wars, it’d be just fine. Those are all “unique data elements that are part of a unique family history or genealogy.”

Bottom line: When we provide content, we need to avoid violating anyone else’s copyright and understand that we’re giving Find A Grave permission to use what we upload. When we use Find A Grave content, we need to again avoid violating anyone else’s copyright and understand that we’ve agreed to use it only in our research projects.


SOURCES

  1. See Judy G. Russell, “Grave terms of use,” The Legal Genealogist, posted 20 June 2012 (http://www.legalgenealogist.com/blog : accessed 19 Aug 2014). See also ibid., “Find A Grave revisited,” The Legal Genealogist, posted 16 Sep 2013. Also, ibid., “The Find A Grave sale,” The Legal Genealogist, posted 4 Oct 2013.
  2. Judy G. Russell, “A terms of use intro,” The Legal Genealogist, posted 27 Apr 2012 (http://www.legalgenealogist.com/blog : accessed 19 Aug 2014).
  3. “User Provided Content,” Find A Grave Terms of Service, 23 May 2014, Find A Grave (http://www.findagrave.com/ : accessed 19 Aug 2014).
  4. Submitting Information / Creating Memorials,” FAQ 71, Frequently Asked Questions, Find A Grave (http://www.findagrave.com : accessed 19 Aug 2014).
  5. “Limited Use License,” Find A Grave Terms of Service, 23 May 2014, Find A Grave (http://www.findagrave.com/ : accessed 19 Aug 2014).
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