Don’t re-use or share images

There’s a new kid in town in terms of genealogical records providers… or at least a new kid in the American town. The site — findmypast.com — is the flagship of British online data provider brightsolid online publishing, and it entered the United States market with a splash last week, offering a new subscription-based model to American customers for an introductory price of $4.95 a month for an annual subscription in addition to its usual “PayAsYouGo” credit system.

In its press release on July 24th, the company said the new site “seeks to become go-to site for Americans of British and Irish ancestries” and, eventually, for all Americans¹ as it began a head-to-head battle with Ancestry.com for the lucrative American market.

So, as The Legal Genealogist continues the occasional series on terms of use, let’s take a look at just how user-friendly this new site intends to be. Remember: terms of use 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

Findmypast.com begins its terms of use with this statement: “We aim to keep our Terms & Conditions as simple as possible.”³ And it pretty much lives up to its aim: the terms of use are in plain English and there are relatively few restrictions. There are some very big ones that every user needs to be wary of, and plenty of the usual legal boilerplate, but — with one exception — the essential terms of use are clear and easy to understand.

First off, the site makes it clear that you have to agree to all of the terms and conditions or you can’t use the site. No ifs, ands or buts here. Buying a subscription, buying any of the PayAsYouGo credits, even using the website is your agreement to the rules set by findmypast.com.⁴

You can search the site for free but you won’t get to see most of the images unless you buy a subscription or credits. You have to register as a user to buy a subscription or credits, and once you buy either a subscription or credits, findmypast.com declares that “A contract exists between us once we send you a confirmation email, after receiving your order and accepting your payment for a subscription and/or PayAsYouGo credits.”⁵ By the way, there’s no such thing as unlimited use of the service. Subscribers are limited to viewing 5,000 records a month — a limit the site describes as “very high.” You’ll get notified by email if you get close to the limit,⁶ and your subscription can be cancelled if you go over the limit regularly.⁷

On the good side, the site doesn’t claim any ownership rights in content contributed by users. If you upload any data, you are giving findmypast.com permission “to use it for letting others view it on the website, marketing, product improvement and other commercial purposes” but you keep the copyright. And if any personal information is to be used — even your name — the site says it “will ask your permission first.”⁸

On the not-so-good-side, the terms are confusing as between using the site to do your own research, using the site to do research for others and providing copies of records to others. It’s clear that it’s perfectly okay to use a subscription for your own personal family history research and download images for your own use. And you’re allowed to “help out other people with their family history by telling them about records available on the website and how and where they can be found” but, if you’re a subscriber, “you may not provide anyone with copies of any records (either an original image of the record or the information on the results page), even if you provide them for free.”⁹

It’s also clear that, if you’re doing research for others, even if you do it for free, you can’t use a subscription; you have to use the PayAsYouGo credits for that.¹⁰ Since that’s expressly allowed, I can only assume that the statement “you can only use the website for your own personal non-commercial use” doesn’t apply if you’re using PayAsYouGo credits. And it’s not clear, even with this express allowance of PayAsYouGo credits for professional use, whether researchers using credits can provide their clients with the actual results of a records search or with a copy of the image. If that’s not the case, then the terms need to be clarified.

And on the uh-oh-not-good-at-all side, here’s the big restriction: you absolutely can’t re-use any of the records from findmypast.com publicly — not on your website, not in a blog post, not in an article or a book, not in any public way — without specific permission:

You can use the content on the website for private and non-commercial purposes only. You may not use the records to create your own work (for example a database of records, an article, blog post or book), copy or reproduce the records (either in whole or in part), or make available, share or publish them unless you have our permission (and/or that of the owner of the copyright/database rights in the work) in writing. The website and services provided on it belong to brightsolid, and again, you must not copy or use them without our permission. Please contact us if you want to use the records or features for anything apart from your own family history research.¹¹

The legal boilerplate includes the usual stuff about limiting liability (the most you could ever collect from them is what you paid them in the 12 months prior)¹² and not being responsible for slowdowns in the service¹³ and even not being responsible for any losses caused by “fires, floods, strikes, earthquakes, landslides and other unanticipated events or natural disasters.”¹⁴

But the site also has some unusual terms. It warns, for example, “We cannot confirm or give warranties about the accuracy or completeness of the records or other information on the website. We simply provide access to it. We are not responsible for content on other sites that we link to.”¹⁵ And if you ever do need to get into a legal tussle with them (or them with you), be prepared to travel: “These terms and conditions are made and governed under the laws of Ireland, without regard to its conflict of laws provisions. You agree to submit to the exclusive jurisdiction of the Irish Courts to resolve any disputes arising from these terms and conditions.”¹⁶

So the bottom line here is that you can access lots of records at this site that you may not find elsewhere, especially records from the United Kingdom and Ireland. But don’t use those records publicly — don’t post the images from findmypast.com on your website, or in your blog, or anywhere else online — without asking permission each and every time. And don’t share what you find. Or you just might find yourself with a cancelled account… and the only place to fight it would be a court in Ireland.

 
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