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.
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.
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.
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?
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.
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.
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.
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.
• 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
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.”
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
But the courts aren’t buying that part very often: not telling you may well mean the changes won’t be enforced.14
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.
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1204, “Use.” ↩
- Wikipedia (http://www.wikipedia.com), “Terms of service,” rev. 26 Apr 2012. ↩
- New York Public Library, NYPL Website Terms and Conditions (http://www.nypl.org/ : accessed 16 Apr 2012). ↩
- New York Public Library, Permissions Terms & Conditions (http://www.nypl.org/ : accessed 16 Apr 2012). ↩
- Ibid. ↩
- Ibid. ↩
- Ibid. ↩
- NYPL Website Terms and Conditions. ↩
- Ibid. ↩
- Specht v. Netscape Communs. Corp., 306 F.3d 17, 22 (2d Cir. 2002). ↩
- Vernon v. Qwest Communs., 2012 U.S. Dist. LEXIS 31076 (D. Colo. Mar. 8, 2012) ↩
- 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). ↩
- 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). ↩
- Douglas v. United States Dist. Court, 495 F.3d 1062 (9th Cir. 2007), cert. den. 552 U.S. 1242 (2008). ↩
- See e.g. Fteja v. Facebook, 2012 U.S. Dist. LEXIS 12991 (S.D.N.Y. Jan. 24, 2012). ↩