The genealogy book and Ancestry’s terms of use

Reader Stan C. is about to finish an impressive piece of work… and is plagued with a real concern.

“I am in the final stages of research on a large genealogy book I am publishing,” he wrote. “Is it legal to use information gleaned from Ancestry.com, with or without sources notated. Should I ask Ancestry for permission?”

Great question, because it reminds The Legal Genealogist that it’s time — and perhaps beyond time — to revisit the question of those pesky things called terms of use or terms of service.

Ancestry terms of use

Those terms, remember, are the limits somebody who owns something we want to see or copy or use puts on whether or not he’ll let us 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 somebody can own a thing without owning the copyright. So this isn’t copyright law; it’s contract law — we and whoever owns the thing we want to see or copy or use reach a deal.1

Now, we may not recall reaching any kind of deal with a website like Ancestry.com, but we most assuredly did, the minute we signed up for the website. As a matter of fact, on Ancestry.com, we can’t even sign up for a free trial without agreeing to the terms of use. The sign-up form itself says, at the point where you send along your name and email address: “By clicking ‘Save and Continue’ below, you agree to the Ancestry Terms and Conditions …”2

And we may not feel like we got much of a choice in this deal — but in reality we got exactly the same kind of choice we have in a lot of things in life: take it or leave it. It’s a little like our relationship with the TSA. We don’t have to go through security at the airport. Of course, that means we don’t fly, either.

So… what does this mean for Stan C. and his family history book?

Two things, and let’s start with the easy one first.

• Should Stan cite his sources? That one’s a no-brainer. We’re genealogists: we always cite our sources. The second element of the Genealogical Proof Standard calls on us, as a matter of genealogical best practices, to include “complete, accurate citations to the source or sources of each information item contributing—directly, indirectly, or negatively—to answers about (the) identity, relationship, event, or situation” that we’re researching3 — and we do that for every single fact that isn’t a matter of “‘common knowledge’ beyond dispute, such as the years of major historical events.”4

And then there are the two related questions:

• Is it legal for Stan to use information from Ancestry.com?

• Does Stan need to ask Ancestry for permission?

And, of course, the answer to both of these is my favorite answer of all time: it depends. And what does it depend upon? Ancestry.com‘s terms of use.

Ancestry’s current terms of use are set out on its website and, in relevant part, they provide:

• As Ancestry users, we agree “Not to … reproduce or publish any content or information found on the Services, except as explicitly described in these Terms.”5

• When it comes to content “owned by or … licensed to Ancestry” (called “Ancestry Content”), we’re allowed to “use the Ancestry Content only as necessary for your personal use of the Services or your professional family history research, and download the Ancestry Content only as search results relevant to that research or where expressly permitted by Ancestry.” And if we do use it, we’re required To “keep all copyright and other proprietary notices on any Ancestry Content you download or print” and we agree not to “distribute, republish, or sell significant portions of any Ancestry Content.”6

• When it comes to content that’s in the public domain, we’re “free to use a small portion of individual photos and documents that are Public Domain Content, but you must obtain our written permission to use more than a small portion of these collections.”7

• And if the content we’re using comes from other users, we should understand that our use of that content is only allowed “as part of, or in conjunction with, the (Ancestry.com) Services.”8

Now of course this leaves open the question of just what exactly constitutes more than “a small portion” or when it becomes more than “a significant portion.” And Ancestry’s answer to that is straight-forward: if we’re not sure, ask.9

Ancestry.com isn’t alone in having these sorts of limits and, in fact, has some of the least restrictive limits of any of the genealogy websites.

So we need to remember, always, before we republish materials from a genealogical website — or, in fact, from any website — check the terms of use.


SOURCES

  1. See generally Judy G. Russell, “Reprise: a terms of use primer,” The Legal Genealogist, posted 29 Apr 2015 (https://www.legalgenealogist.com/blog : accessed 27 Nov 2018).
  2. “Your Order Summary,” Ancestry.com (https://www.ancestry.com/order/ : accessed 27 Nov 2018), emphasis added.
  3. Board for Certification of Genealogists, Genealogy Standards (Nashville, TN: Ancestry, 2014), 1.
  4. Ibid., Standard 1, at 5.
  5. ¶ 2, “Requirements for Using the Services,” Ancestry Terms and Conditions, Ancestry.com (https://www.ancestry.com/ : accessed 27 Nov 2018).
  6. Ibid., ¶ 5, “Content Used in the Services.”
  7. Ibid.
  8. Ibid.
  9. Ibid.
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