A terms of use intro

Another occasional series: terms of use

In Wednesday night’s webinar Facts, Photos & Fair Use: Copyright Law for Genealogists sponsored by APG, there were whole bunches of questions left in the queue when time ran out… and the bulk of them dealt with what are called terms of use. Those are the rules that may apply to control how information and documents can be accessed online or in person or what use can be made of the information and documents after they’re accessed.

I made a deal with the folks who hung on until the end of the webinar: let me get some sleep and I’d do what I did yesterday — promise to follow up on those unanswered questions.

So today The Legal Genealogist starts the first in what will be an occasional series on the issue of terms of use, particularly as it affects genealogists and the repositories — online and off — that we use on our research.

And, of course, starting off into a new subject means making sure we’re all clear on what exactly we’re talking about here. Let’s start with six basic questions.

What are terms of use?

Easy answer: they’re 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.

The phrase “terms of use” isn’t defined in the old legal dictionaries. The closest they come is the definition of “use” by Black to include “the right given to any one to make a gratuitous use of a thing belonging to another.”1 Wikipedia, without citing a source, says terms of use, terms of service and terms & conditions are all the same thing (they are) and defines the phrase as “rules which one must agree to abide by in order to use a service.”2 That’s a pretty fair definition.

But, you’re thinking, if it’s rules, how can it be considered a contract? Nobody gave you a choice about the rules when you subscribed to, say, GenealogyBank.com or Ancestry.com, did they?

Actually, they did. Exactly the same kind of choice you have in a lot of things in life: take it or leave it. When you created your account with one of the many services we use around the web, commercial and non-commercial, there comes a point in the join-up or subscription process where there’s a button or a check box or something. It always says something like the example shown in the graphic: if you click on it or check the box, you’ve agreed to be bound by what the terms of use are.

It’s a little like your relationship with the TSA. You don’t have to go through security at the airport. Of course, that means you don’t fly, either.

What kinds of places have terms of use?

Just about every place — online or off — has some kind of terms of use.

I haven’t found a single genealogical repository website that doesn’t have detailed terms and conditions posted on the website. Ancestry.com, Archives.com, Fold3.com, GenealogyBank.com, NewspaperArchive.com, and more have terms and conditions.

Non-profit online repositories are no different. Check out FamilySearch.org or even EllisIsland.org if you don’t believe me. Government-related websites have them too. Look at the New York Public Library or the digital collections of the Omaha Public Library. And even places dedicated to the free exchange of information have ‘em — Wikipedia itself has terms of use (and it’s about to change ‘em).

Physical repositories are no different. In one way or another, they control access to and/or use of materials we need. Some of them relate to security. You can bring a computer, but not a computer bag, into the search room of the North Carolina State Archives. Some of them deal with how copies are made. You can’t use your own camera to copy a document at the West Virginia State Library and Archives (copying can only be done by staff, for a fee). And some restrict use of what you find: you need specific permission to publish anything you find in the Southern Historical Collection of the Wilson Library of the University of North Carolina at Chapel Hill.

What’s included in terms of use?

Are you really sure you want to know? Contract terms can be really ugly.

Let’s take an example that’s about as benign as I can imagine: the New York Public Library’s website. I love the NYPL. It’s a great institution with a great staff and they do about the best job of providing access to vast amounts of information to people in the City and environs that you can imagine.

And their terms of use for their website and image use scare even me.

     • You can use low resolution images from the website and library but they can “only be used for personal, educational, or research purposes. They may not be used for commercial purposes.”3

     • High resolution images require permission and payment of a fee. “Images are not to be used in any manner without the express written permission from NYPL. All images are provided pursuant to this Policy and the written Permissions statement you will receive. Image usage without prior payment and NYPL’s express written permission is strictly prohibited.”4

     • “Images or image files cannot be distributed or re-sold independent from the specific use for which permission is granted and may not be used in a manner allowing permanent storage or re-use by third parties. No Permissions may be sublicensed, transferred or assigned. You agree not to make, authorize, or permit any use of any image except as specifically set forth in this Agreement and in the written Permissions statement that you will receive.”5

     • “Failure to comply with any of the provisions of this Policy statement and in the written Permissions statement that you will receive may result in immediate revocation of the Permissions granted.”6

     • If you and the library disagree, “A material part of this Agreement is our mutual agreement to arbitrate disputes,” (meaning you can’t sue them), “the agreement shall be interpreted under, and governed by, the laws of the State of New York” (even if you live in New Jersey or Connecticut) and “If NYPL is obligated to go to court, rather than arbitration, to enforce any of its rights, you agree to reimburse NYPL for its legal fees and disbursements if NYPL prevails.”7

     • If you and NYPL get into a legal tussle over using the website, you “agree not to commence any litigation relating to the use of any of the NYPL Websites, except in courts located in New York City. Users also waive any objections to venue of any such litigation in courts located in New York City and agree not to plead or claim that New York City is an inconvenient forum.”8

     • If something you do makes somebody else get into a legal tussle with NYPL, you agree “to defend, indemnify and hold NYPL and its Trustees, officers, employees and agents harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees.”9

YIKES!

And that’s from a library!

Commercial sites have terms like “even if you live in New York, we can sue you here in California and you can only sue us in California”, or “we can wipe out your account, delete everything you have online with us and if it turns out we’re wrong, we’ll apologize but you don’t get any money from us.”

Are terms of use enforceable?

Yup. As I said before, this is just a contract between you and the repository and courts enforce these just the way they do any contract. They look for evidence that you knew what the terms were and you agreed to them.

Most websites use the button or check box system. In court cases, it’s called a “clickwrap”10 or “click-through”11 because you can’t get to what you want until you click. And federal and state courts enforce clickwraps all the time.12

They even usually enforce them where you don’t have to specifically click through but the terms are clear on the website page where you sign up; that’s called a “browsewrap.”13

Can a website or repository change terms of use?

Yup. Most of the terms of use say they can and some even say they can do it without telling you they’re doing it. The argument is that if the original contract says they can change terms without telling you, then it doesn’t violate their end of the deal if they change the terms without telling you.

But the courts aren’t buying that part very often: not telling you may well mean the changes won’t be enforced.14

What can happen to me if I ignore terms of use?

You did read the “we’ll revoke your right to use this website, sue you in our local courts and make you pay our attorney’s fees” part, right? And the “you live in New York but can only sue us in California” part?15 That’s what can happen.

In future posts in this occasional series, we’ll look at specific terms of use of specific websites genealogists use: exactly what’s allowed, what’s not, and how you can at least try to get permission for something you really need that isn’t in that website’s terms of service. Sure, we’ll hit the obvious choices — but if you have a website you use and you really want it included, This email address is being protected from spambots. You need JavaScript enabled to view it.


SOURCES

  1. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1204, “Use.”
  2. Wikipedia (http://www.wikipedia.com), “Terms of service,” rev. 26 Apr 2012.
  3. New York Public Library, NYPL Website Terms and Conditions (http://www.nypl.org/ : accessed 16 Apr 2012).
  4. New York Public Library, Permissions Terms & Conditions (http://www.nypl.org/ : accessed 16 Apr 2012).
  5. Ibid.
  6. Ibid.
  7. Ibid.
  8. NYPL Website Terms and Conditions.
  9. Ibid.
  10. Specht v. Netscape Communs. Corp., 306 F.3d 17, 22 (2d Cir. 2002).
  11. Vernon v. Qwest Communs., 2012 U.S. Dist. LEXIS 31076 (D. Colo. Mar. 8, 2012)
  12. See e.g. Kraft Real Estate Invs. v. HomeAway.com, 2012 U.S. Dist. LEXIS 8282 (D.S.C. Jan. 24, 2012); Fteja v. Facebook, 2012 U.S. Dist. LEXIS 12991 (S.D.N.Y. Jan. 24, 2012); United States v. Drew, 259 F.R.D. 449 (C.D. Cal. 2009); Durrett v. ACT, 2011 Haw. App. LEXIS 767 (Haw. Ct. App. July 12, 2011); Fieldtech Avionics v. Component Control.Com, 262 S.W.3d 813 (Tex. App. 2008); Adsit Co. v. Gustin, 874 N.E.2d 1018 (Ind. Ct. App. 2007).
  13. See Ticketmaster v. RMG Tech., 507 F. Supp. 2d 1096 (C.D.Cal. 2007); Major v. McCallister, 302 S.W.3d 227, 229-231 (Mo. Ct. App. 2009).
  14. Douglas v. United States Dist. Court, 495 F.3d 1062 (9th Cir. 2007), cert. den. 552 U.S. 1242 (2008).
  15. See e.g. Fteja v. Facebook, 2012 U.S. Dist. LEXIS 12991 (S.D.N.Y. Jan. 24, 2012).
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4 Responses to A terms of use intro

  1. Ruy Cardoso says:

    I recall a term from early in my working life, “contracts of adhesion,” which terms of service always remind me of. But I can’t remember if the term only applies to contracts having some element of compulsion (e.g., drivers in most US jurisdictions must purchase some form of auto insurance). No one is legally compelled to use the services of the NY Public Library or Ancestry.com, for example. Then again, no one is legally compelled to drive, either.

    And I am curious about mid-contract changes in terms of service. Here’s a hypothetical case to ponder. Say I purchase a year-long subscription at GenericRecords.com. Say our good friends at GR change the contract terms six months in and so inform me. Say I don’t like the change and ask to be released from the remainder of the deal, but GR refuses to give me back half my subscription fee. Do I have much of a legal argument? I seem to recall that credit card companies changing their terms of service often don’t consider them to be in effect while you are still using your old (unexpired) card. Start using a new card, though, and you are then accepting the new TOS.

    • Judy G. Russell says:

      You’re right about contracts of adhesion (usually meaning contracts where the terms are basically dictated by one side that has grossly unequal — and stronger — bargaining power than the other) but you’re also right that there has to be some element of compulsion. The simple fact that a contract is offered on a “take it or leave it” basis doesn’t put it into that category. And remember: contracts of adhesion are perfectly legal — they just get looked at more carefully for overall fairness from a court if the contract terms ever get to be an issue in a lawsuit. Whether you can get some or all of your subscription fee back in your hypothetical probably depends on the terms of the agreement, but my guess is that GenericRecords.com would be hard-pressed to argue that it could change the terms in a way that hurts you and still keep your money once you said you wanted to end your subscription. Of course, the original terms of use probably said you couldn’t sue them at all or couldn’t sue them except in a state very far from your home, and…

  2. Celia Lewis says:

    Okay, the hair is standing up on my arms and neck reading this… I need to wrap a blanket around me and poke much more carefully at websites in future. This is feeling like there be alligators in those sites! Thanks for the details here and to come, Judy.

    • Judy G. Russell says:

      Alligators! A perfect analogy, Celia (though folks who, um, shall we say, distrust lawyers might think sharks…)

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