“Can the company simply change the terms that you agreed to when submitting your DNA several years before they published this change?,” she asks.
Short answer: yep, they sure can.
As long as they do it right.
Now… let’s stop for a minute, back up and make sure we all understand what we’re talking about here.
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 a service like AncestryDNA, did they?
Most websites use the button or check box system. In court cases, it’s called a “clickwrap”3 or “click-through”4 because you can’t get to what you want until you click. And federal and state courts enforce clickwraps all the time.5
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.”6
So… once we sign up and we agree to these rules, can a website like AncestryDNA change the rules and enforce the change?
Again, the answer is yep, as long as the company does it with notice, and the notice is clear and unambiguous.7 It’s only if they don’t tell us about the change, or when the changes are mentioned in links in obscure sections of a webpage that users are unlikely to see, that the courts generally won’t enforce the changes.8
But as long as they make it clear that the rules are changing so that we have a choice to keep using the site or leave, that’s generally enough.
In the case of AncestryDNA, the website itself provides specific notice of changes, it announces the changes in its blog9 and it even, sometimes, provides notice by email.
It may not seem fair that a website can change the rules after the fact and present us with a take-it-or-leave choice, but that’s what the law allows.
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1204, “Use.” ↩
- Wikipedia (http://www.wikipedia.com), “Terms of service,” rev. 3 Aug 2017. ↩
- 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). ↩
- See Nicosia v. Amazon.com, Inc., 834 F.3d 220, 233 (2d Cir. N.Y. Aug. 25, 2016). ↩
- See Douglas v. United States Dist. Court, 495 F.3d 1062 (9th Cir. 2007), cert. den. 552 U.S. 1242 (2008). ↩
- See e.g. Eric Heath, “Setting the Record Straight: Ancestry and Your DNA,” Ancestry blog, posted 21 May 2017 (https://blogs.ancestry.com/ : accessed 17 Aug 2017). ↩