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Broad rights granted in license

One of the big buzzes in the genealogical community right now is the ability to create multimedia stories of our families on various websites.

Just add a few facts — names, dates, places — upload some family photos and documents, and voila! A polished finished product gets produced as if by magic, with music and timelines of events and more.

WDYTYAOne of these services is the Who Do You Think You Are? Story website from DC Thomson Family History Limited, the parent company of findmypast (both the US and UK varieties).

It’s a beta product at the moment, and it was being featured at last week’s 2014 Federation of Genealogical Societies conference in San Antonio.

And because the whole function of the website is to get us to share our information, we always always always have to take a very careful look at the 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.”1 And when it comes to a site where sharing is involved, terms of use are also those pesky little sometimes-written-in-legal-jargon provisions saying what the website can do with anything you choose to upload.

For the most part, Who Do You Think You Are? Story’s terms of use are perfectly ordinary and, to the company’s credit, written in plain English.2 But there are a couple of provisions that every potential user should read carefully, and stop and think about, before uploading a single item or sharing a single fact on the site.

The big one affects anything you choose to upload to the site, and the criticial language is highlighted in bold:

You keep the copyright in any content that you create or publish on the website, but by publishing it you give us permission (a non-exclusive, perpetual, transferable, sub-licensable, royalty-free, worldwide licence) to use it (including editing, adapting or modifying it as we wish) for any purpose and in any media now known or invented in the future.

Please be aware that we may not credit you as the author of the material.3

In plain English, by using the website and uploading anything — a photo, a story, any comments you share about an ancestor or about your research — you are giving the parent company, DC Thomson Family History Limited, an unlimited right to use what you’ve uploaded. It’s a license, meaning you do keep your own copyright in your own work, but it’s a license that allows DC Thomson Family History Limited to do just about everything that, ordinarily, copyright law says only the creator of the work can do: copy it, display it, create derivative works from it, and modify it.

If you choose to upload something and create your story online, you must understand that you are agreeing to allow it to be used, edited, adapted, changed, and modified for any purpose the company chooses at any time the company chooses. It could use your story for advertising, if it wished, without paying you, and it wouldn’t even have to give you credit for it.

And it can change the work — the story — you’ve created. That’s what you’re giving the company with the “editing, adapting or modifying it as we wish” language.

Your grant of permission is perpetual — meaning forever — and it’s unrestricted. You can’t come back later and say you didn’t mean it; there’s no mechanism in place to have any content removed from the service unless it’s found to violate someone else’s copyright or is offensive or defamatory.

The company has the right, under this grant of permission, to sell the entire operation, lock stock and barrel, to some other company down the road (that’s the transferable part), or to allow another company to use the content (that’s the sub-licensable part).

You also need to understand that your work can be viewed and, potentially, used by everyone else who uses the website for their own personal noncommercial research.

Let’s be clear about this: there’s absolutely nothing wrong about what Who Do You Think You Are? Story is doing; it’s not hiding a thing. It’s a commercial venture that’s trading you a place and a method to share your materials and in return you give the company the rights to your materials. If that doesn’t sit well with you — if you have qualms about it — don’t use one of these story-creation sites. It’s as simple as that.

And, by the way, because you’re the one granting the license, if you do choose to upload, make sure you only upload things you have the right to share. The terms of use make you responsible and require that you do not “share the personal details of any living person without their permission” or “publish something that you do not own the copyright in (or have permission to publish it from the owner).”4

If there’s a dispute down the road, the case is going to be decided a long way from your home: “These Terms are made under English law, and any arguments about them will only be heard in English courts.”5

Beyond the sharing issues, another stop-and-think provision is the requirement that anyone using the site for commercial purposes get consent:

Using site content for commercial purposes: You must contact us for consent if you want to reproduce or share any of the content on the site (including images) for commercial purposes. This includes commercial publishing or sharing in any media format now known, or invented in the future. You’re free to use and share the content on the site for non-commercial use…6

The problem is that there’s no definition of commercial purposes on the website. Could a genealogy professional create one of these stories for a client? Use a screen capture for a blog post? Use a short clip in a genealogy lecture? Are you a commercial user if your blog has Google Adwords or a FlipPal link? It isn’t clear.

Bottom line: share with care. If you create one of these stories, you’ve given up control over it — completely and forever.


SOURCES

  1. Judy G. Russell, “A terms of use intro,” The Legal Genealogist, posted 27 Apr 2012 (http://www.legalgenealogist.com/blog : accessed 1 Sep 2014).
  2. Terms & Conditions: How You Can Use Our Service,” Who Do You Think You Are? Story (http://www.whodoyouthinkyouarestory.com/terms : accessed 1 Sep 2014).
  3. Ibid., “Your Content.”
  4. Ibid.
  5. Ibid., “Limitations.”
  6. Ibid., “Using the Service.”
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