Copyright vs. Terms of Use/Service (on the internet)

This topic has come up a number of times that I’ve seen while doing genealogical research, but I’ve also seen some examples in other areas.

I understand copyright, and I mostly understand Terms of Use/Services on various websites. But what happens when those overlap, which one would come out on top? For instance, the vast majority of things published by the US government has no copyrights on them.

Places like have images of probably all the US censuses taken. While they don’t claim copyright or ownership, they do say that you can use a small portion of am image, but must get written permission for any other uses

I’ve seen questions come up from time to time if someone talks about using a census record in a book they are writing someone says, “you can’t put that in your book since you don’t own it” or “the terms of use don’t allow that.” But Ancestry doesn’t own the census record, just a copy of it.

There are also websites that take charts and maps made by the US government and either claim copyright of the image or if you pay for it say you can only use it on one device. Even if that website has just made a direct copy of what is available on the US department that made the chart.

So how does the TOS and copyright, or lack of, change how a document/image can be used? Has it ever come in in court? I doubt Ancestry would come after someone for using a few pages of census records in a book, but what of other items? Say I found a USGS quad not on the USGS site, copied the map and then gave it away. If the place I got the file from can’t really say they own the file can they? Especially if they just took it from the USGS site and put it on their website and said in their TOS it’s our file.

Let’s strip the copyright out of the equation, and pretend there’s a website that collates publicly available fuel economy data from the federal government and makes it available as a service to paid subscribers. Since fuel economy data is not a creative work, copyright does not apply. Presumably this website would have a basic TOS that states that you can’t turn around and give away their collated data for free.

If you violate the terms of that contract, and if they think can prove that you’ve caused them some financial harm, they can sue you for damages. The fact that the data they’re suing you over is publicly available doesn’t change that.

Another vote for the copyright issue of scans is not relevant. Scanning something in the public domain is considered not transformative enough to warrant the creation of a new copyrightable work.

Not that there’s not companies that try to pull one over on people. Famously, years ago, Microsoft bought the rights to scan a lot of artwork from museums for uses such as Encarta. They claimed copyright on these scans despite that not being possible (either they’re in the public domain or the artist or assignee owns the copyright).

The thing to keep in mind: do you have enough money to fight off the lawyers of MS or whoever?

ToS are something else. To violate ToSes regarding security (trying to break into a site or some such) is definitely criminally illegal under US law. You’d be surprised how many companies view something like downloading an image off their site as a criminal act under US statute. “You hacked us!!!”

(Never mind the image might be in my browser’s cache where I can easily save it. If you can’t transfer images on a website your pages are going to look quite plain.)

Again, you might be right but … lawyers.

Many such threats are not backed by law but by the implied economic doom that would follow for most people.

Note that in regard to the census data, there is work involved in transcribing the scans to text. So it would be technically copyrightable except that the material is merely listings similar to a phone book which was not copyrightable. But recent changes to the law have made many “mere lists of data” protectable.

It’s a mess. What a surprise.

This is what I don’t fully understand. I get that one can charge for a service, even if the information is freely available some place else. Maybe they make it easier to search or something like that. What I don’t get is then turning around and saying, hey, you can’t use this data except how we tell you you can. That’s adding restrictions that seem to come from nowhere.

I know there is work in transcribing stuff, which people do for free and some places will give you an account for helping out.

Why i brought up the copyright is I have seen places that will CLAIM copyright in their TOS. I know of sites that have copies of older maps, they say they own the copyright, even for ones well over 100 years old, and charge hundreds to thousands for use of these maps. I mean if you can get away with it great, but many of these maps were scanned by the Library of Congress and just copied to their site.

I make aeronautical charts for the gov, I’ve seen a few times in airports prints of my charts, except they have removed some of the notes and publication information and put their own copyright on them. It’s been a few years since I’ve seen that since most people get electronic charts. But now there are sites that basically do the same thing, strip off the government publication data and say they own the data.

That’s why I asked if there have been any such cases or what could happen with such information. When I’ve asked before it always seems circular to me, you can’t use the information because the TOS says you can’t, but it wasn’t theirs in the first place.

Searching finds only others who have asked this question, and answers provided by people who aren’t lawyers.

What I can’t find is suing anybody over this issue.

A whole bunch of people sue them, though. They pulled this trick in 2007:

IANAL either. My take is that scans of public domain material are in the public domain. I pay good money for access to newspaper databases, but they don’t own the papers they scanned. I can’t take their pages or layouts or controls but the material from the newspapers aren’t theirs to prohibit, ToS or not.

Did I mention IANAL?

They might sue you. But you could use as a defense “I didn’t use your data; I went to the Census Bureau and made my own copies, and used those”. And if the finder of fact in the court agreed with you, they wouldn’t have a case.

They could also kick you off their site. Their terms of service probably allow them to do that even without reason, so in that case, the burden of proof would be whatever they decide they want it to be. You could e-mail them and explain “No, really, it wasn’t actually your data”, and they could decide for themselves whether to let you back in on that basis. The legal system, in this case, would not be involved at all.

If someone is providing you a service under a contract whose terms you agreed to, it’s irrelevant whether they are providing you material under those terms that you might have gotten from another source or that it’s not protected under copyright law. It’s a service contract.

It’s relevant whether you’re telling the truth when you make this argument.

Reading the thread, I guess my question boils more down to, how far can the TOS go in telling you what you can or can’t do with data? It kind of reminds me of when Garth Brooks tried to keep his music from being sold in used CD stores. The music itself is his, but the physical copy of the music was the person who bought it.

It would be like someone opening a store, and on the front door was a sign saying, “You can buy what you want, but you can’t give it away, and if you want to sell it you must bring your item back here to us.” One can write anything in to a contract, but that doesn’t mean it’s enforceable, it just seems no one has actually tried with TOS of public works.

Which is why I included the part about the finder of fact agreeing with you.

Legally speaking, if it’s a sale, they can’t negate your first-sale rights. But they can use a contract to convert a sale to a serivice or license. If you sign a contract that says “I acknowledge that I’m not actually buying this book, but rather taking it for use limited under a service contract or license,” then that can be enforceable against you. That’s basically how almost all software works.

Isn’t it also true that virtually no terms of service of this nature have ever been tested in court?

I feel certain that “more than a small portion” has no good legal meaning. Realistically, is trying to prevent someone coming in and offloading a terabyte of data to start their own competing firm. No ordinary user will ever bump up against this limit. The non-definition of “more than a small portion” still stinks, in my IANAL opinion.

I do get how most of service contracts work, especially after this thread. I guess I’m still a bit confused as to how someone can either say they own something in the public domain, or how it can be restricted because they put those words in to a TOS.

I’m not asking about the majority of things in most TOS, I get software, digital music or books. I also get paying for a service. I don’t get someone saying, here’s this item, I don’t own it, didn’t create it, I put it on a website. You can download it, but you can’t give it to anyone else, put it in a book as we own the copyright. I actually saw that this morning where a mapping site that had a lot of USGS quads on it, someone asked how they thought they owned the copyright on them as they are public. The answer was because they took the information and put it on their website so in doing so they now control the information. No changes were made at all, the site says as much, but their TOS says you can pay to see a non-watermarked map, but you can not give it to anyone else.

I am guessing that’s part of what Ancestry is trying to do. There have been a few attempts to data mine Ancestry or other such sites. The “more then a small portion” is confusing for people too. Plenty of people write genealogical books, none of them are making money, and if one had to pay to be able to print a census record no one would pay, or they wouldn’t publish.

I think it falls in the same category as cease and desist letters. If it looks official and legal, it may dissuade some people because they think it’s true; and dissuade others because they may fear the cost of fighting a lawsuit, even if they win.

My advice would be move to Canada, where I understand that the loser pays the winner’s legal bills in most civil suits.

The contract issue and the copyright issue are two different questions. If you enter into a service contract for information then they can restrict your use of the information that you got from them. That’s separate from any copyright question.

If they’re just providing you exactly the information as they obtained it from somewhere else, without any umbrella of copyright covering that transaction, then any claim of copyright in that information by them is dubious, particularly if the information is in the public domain.

However it’s conceivable that such a service could be adding its own creative input that is separately subject to copyright protection.

It’s hard to answer these questions in the abstract.

Presumably, there’s some reason why it’s convenient for you to use the company’s service. Maybe the public-domain information is bundled in with other information that’s not public domain (and maybe the combination of both information sources is more useful than either one separately). Maybe it’s just convenient that the company has done the legwork of picking through all of the mountains of public information and picked out the pieces that are relevant. Maybe they’re just counting on people who don’t know that they can get the same information elsewhere. But for whatever reason, you made the choice to do business with the company, instead of going to the Census Bureau or whatever yourself. The company can set conditions on who’s allowed to do business with them. Those conditions might include things like paying them, and they might include agreeing to their Terms of Service. If you didn’t want to be bound by their Terms of Service, then you shouldn’t have agreed to them.

An interesting example is the Open Gaming License, used by Wizards of the Coast for the third edition of their Dungeons and Dragons game. The game includes both uncreative information which cannot be copyrighted, like tables of numbers, and creative information which can be, like descriptions of different settings or kinds of characters. But they wanted to have some sort of protection for the uncreative information. So they created the Open Gaming License, and put some (but not all) of the creative content under it. And then they said that anyone who wanted to could use and reproduce the OGL content without paying for it, but only if they agreed to the condition that they would voluntarily not reproduce any of the non-OGL content. So if they find a website that has a copy of, say, the XP table (one of the non-OGL pieces), if that’s all the creator of the website had ever done with the game, the website would be in the clear, and there would be nothing that the company could do about it… but if, as is much more likely, the creator of the website had ever posted copies of any of the copyrighted OGL material anywhere (which almost all people involved in the hobby have done), then the company could go after that person for violation of the license agreement, and hence unauthorized use of that copyrighted material.