The Law Forum: Copyright, Privacy, and More

Replies to This Discussion

Permalink Reply by Craig Manson on July 11, 2009 at 9:26pm

Here are some links to some posts about the law from GeneaBlogie (my blog):

# Copyright Issues: Photographs
# Avoid Defamation
# Another Law Lesson: A Most Excellent Question
# Another Law Lesson: The Basics of Defamation
# More Genealogical Law: Invasion of Privacy
# Law and Genealogy–A Quiz
# Genealogy Law Quiz Answers

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Permalink Reply by Patricia Aceves Wyble on July 11, 2009 at 9:40pm

Thank you for the links, these are issues that I think are overlooked too often.

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Permalink Reply by Craig Manson on July 12, 2009 at 8:28pm

Thomas MacEntee has a superb post on protecting your genealogy blog's content and your Internet reputation by fighting "splogs." This is very important! Check it out!

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Permalink Reply by Thomas MacEntee on July 16, 2009 at 10:35pm

Thanks for the shout out Craig! I mentioned you specifically in my video interview by Lisa Louise Cooke during Jamboree (http://www.youtube.com/watch?v=0L7-t0cTOqw) - I can always look to you for good information on copyright issues, genealogy and blogging.

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Permalink Reply by Luckie Daniels on July 13, 2009 at 5:15am

Several years ago while researching courthouse archives in Wilkes Co., I discovered two 1841 Deed of Indenture documents relating to the sale of WINGFIELD slaves by the man who owned my 4th Grandfather James - James Nelson WINGFIELD.

The Indenture documents appeared to have divided the Wingfield slaves into two groups. My James and others, went to Susan Wingfield. The second group, went to Son-in-laws on behalf of James Nelson's Daughters.

It actually appeared that James Nelson was selling the slaves to his family vs. willing them.

When James Nelson died in 1850, his estate did not reflect ANY slaves although I know that He & Susan Wingfield still had possession os slaves, including my Grandfather.

Help me to understand how and why these documents were used. Was it a common for a slave owner to make it appear that he sold his slaves, when in essence, they were still in his possession?

Here is the original 2002 post and response from the Afrigeneas forum - http://tinyurl.com/ngza4a

I'm going to post this on the Researching Slave Ancestry forum as well - feel free to weigh in over there if this isn't quite the forum for this discussion.:-)

Luckie.

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Permalink Reply by Craig Manson on July 14, 2009 at 10:17pm

This is a very odd case, but perhaps in the context of slavery, not so odd. Let me consult with a slavery law expert and I'll get an answer for you .

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Permalink Reply by Craig Manson on July 17, 2009 at 8:38pm

Hey,LD,

A deed of indenture was often used to create interests in either personal property or real property. There was some debate in the southern legal circles whether slaves were to be treated like real property or personal property. In this case it seems as if they were treated like real property. But I can't be sure. Do you know if James Nelson Wingfield had a will when he died? The reason I ask is that from your description of what occurred, for his children, the property of the trust being in the slaves themselves., while this form of nontestamentary disposition is not uncommon today, I don't think that was necessarily the case in 19th-century Georgia. But that's what it looks like he was doing. An interesting source to read is Slavery and the Law, by Thomas Morris. I don't know if this helped; someone has some other ideas about this.

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Permalink Reply by Craig Manson on July 30, 2009 at 11:16am

GeneJ asks:

The issue of subscription service dos and don’ts was raised in the group, “Most Wanted! Ancestors Lost and Found.” In response, I said I’d ask for more input … in the meantime I posted the item below. I’ve sent a message to FamilyLink, but would so welcome any thoughts you might be willing to share. –GJ

I sure hope the activities in which we are engaged aren’t considered an abuse of subscription service license agreements. Many subscription service features can be broken into two parts, so that the indexing/searchable database is one feature separate and distinct from a digital image that can be accessed via that database.
(a) Information from a database search or two has been uploaded and discussed in this group. In each instance, we’ve shared tiny/targeted results from a database search. Consider the difference between the snippets we’ve shared and say an Excel spreadsheet into which someone imported all the indexed entries from the 1880 U.S. census at Indiana.
(b) I’m sure some of the digital images uploaded here were accessed via a subscription site (including Heritage Quest). Consider, however, that the digital images of U.S. Census sheets we've shared are reproductions from film held by the National Archives.

As I understand the issue separately discussed on GW, some don't want members offering to make regular, free look ups on subscription sites, ala, the “Look Up Angels,” right? Despite that I may have different opinions on some things and my experience is limited to practices in the U.S., I don’t think our members are offering to make continuous searches for the group. I have been watching for personal information/ images of living persons and overly large Excel files, etc.


MY VIEW:

Good issues here! There are several concepts that must be borne in mind:

(1) Creativity and originality are protectable; facts are not.
(2) The law permits a "fair use" of otherwise copyrightable material.
(3) When one signs up with a subscription service, they agree to be bound by the site's "terms of service" which may
alter the parties' absolute rights under the law.

So, let's apply these concepts:

(1) Facts are not proprietarily protectable under copyright law. So I'm not especially worried if someone asks me to
look on Ancestry.com up "where John Doe lived in 1880." [Now if the same someone was calling me every day to do
look-ups for them, I'd be peeved, but not because I'm worried about copyright infringement!].
(b) What may be protectable includes the format and style with which the facts are laid out. Thus, if BigTimeGenealogy, Inc., has presented the 1880 federal census in a unique and creative manner, that format, style, compilation, database, etc., may be the subject of copyright. When someone downloads an entire database, I start to wonder if they have also copied elements that may be copyright-protected.

(2) "Fair use" is a legal concept that permits limited use of someone else's intellectual property in a creative work.
There are several factors considered with respect to fair use:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit
educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work.

When we consider "the purpose and character of the use," we consider whether the use of the protected work is
"transformative." That is, does the use bring new creativity or not? If not, this weighs against "fair use." Thus,
merely copying a work is not "transformative." Presenting it in a different medium may be transformative. For an
interesting current example of something that probably is transformative and thus not a violation of copyright,
check out my article, The Coloured President, at Shades of the Departed.

Practical impact: people who copy entire databases, including the original formatting and presentation and not just
fact, are on thin legal ice!

(3) Wholly apart from copyright is the matter of "Terms of Use" of commercial services. Ancestry.com, for example,
in its "Terms and Conditions," provides:

You are licensed to use the Content only for personal or professional family history research, and may download
Content only as search results relevant to that research. The download of the whole or significant portions of any
work or database is prohibited. Resale of a work or database or portion thereof, except as specific results relevant to
specific research for an individual, is prohibited. Online or other republication of Content is prohibited except as
unique data elements that are part of a unique family history or genealogy.

Ancestry.com Terms and Conditions, as revised 6 July 2009, http://www.ancestry.com/legal/terms.aspx (accessed
29 July 2009)

Okay, so that's a bit wordy, but I hope it helps.

If someone asked me to look up Mandy Gaynes in the 1900 census, I would have no problem relating the facts from this image downloaded from Ancestry.com.

Note that Ancestry.com claims no copyright in works of the U.S. Government. Nonetheless, it may be a violation of the Terms and Conditions to download at once thousands of census images from Ancestry.com and distribute them to others.

Ancestry.com does have copyright protection for its presentation of census records. The screenshot below is protected by copyright. (Its use here, however, is a "fair use."). If one was to copy from Ancestry elements such as these and distribute them as they are, that is probably a copyright violation.

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Permalink Reply by Debbie Kennett on August 1, 2009 at 10:17am

Thank you Craig for your helpful comments. My understanding has always been that it is perfectly acceptable, as you say, for someone to use their subscription service to answer individual queries on an ad hoc basis on sites such as GenealogyWise. I have always understood however that it is a different matter if someone advertises the fact that they have a subscription to a particular website and that they are willing to do look-ups for all and sundry. Similar concerns apply to people who advertise blanket look-ups from copyrighted books and database CDs. Presumably the fact that the look-ups are publicly advertised and are potentially unlimited means that such advertising is in contravention of the fair use agreement. Ancestry does not own the copyright of all the images on its website. The UK census records are reproduced under licence from the National Archives and these images are the subject of Crown Copyright. The National Archives have detailed guidelines on the subject of copyright on their website which can be read here. If I've understood the wording correctly no National Archives images should be reproduced on the internet without first requesting permision from TNA's Image Bank.

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Permalink Reply by Craig Manson on August 1, 2009 at 4:23pm

Debbie,

I think you're spot on!

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Permalink Reply by Craig Manson on July 31, 2009 at 7:40pm

Before we get into some procedural stuff here, I would mention that The Archives of Michigan houses a record set from the Boys Vocational School. Their Archival Finding Aid No. 9 "Records of the Boys' Vocational School, 1855-1954," describes the collection. I don't know if the records being sought are included here, but it's worth contacting them about.

Now the basic issue is how to get those records if they're not in the Archives. As a matter of general policy, juvenile records long have been considered confidential in most states. And the line between "school" records and "court" records loses much meaning with respect to a facility like the Boys Vocational School. Nonetheless, the confidentiality policy was intended for the welfare and privacy of the young wards concerned. But they are all deceased and likely are their first degree relatives, as well as the school staff. The law generally recognizes no right of privacy for the dead. Michigan would seem to be serving no purpose if it keeps the records sealed. I can think of no legitimate reason to keep any government record sealed in perpetuity.

Michigan has a Freedom of Information Act (FOIA)) which is designed much like the federal FOIA (about which I teach every year at Pacific McGeorge School of Law in Sacramento). Under Michigan FOIA, state agencies must make records available to the public for inspection and copying unless certain specific exemptions apply. In my cursory look at it, I didn't see anything the could reasonably be construed as an applicable exemption for the Boys Vocational School records.

So I would suggest these steps:

(a) Check with some higher functionary than the one first approached about the records.
(b) Check and see whether the Archives holdings include the records being sought.
(c) File a request for the records under Michigan FOIA--this is quite simple to do and there are a number of sites on the Web that have sample FOIA request letters.

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Permalink Reply by Craig Manson on August 1, 2009 at 4:21pm

Thanks, Michael. You make some important points about FOIA. In fact, a lot of agencies hate it and so they make it their last priority!

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