RootsTech 2015

Some people eat, sleep and chew gum, I do genealogy and write...

Friday, August 8, 2014

Can you steal information, documents and photos online?

In a comment to a recent blog post, one commentator referred to the issue of "stealing" other's genealogical information online. When I responded to the comment, the commentator made the further observation that my response was typical for an attorney. The issue is the fact that some people believe they own their research. They believe that adopting records from another online family tree is "stealing."

What are the ethical and moral obligations we have as genealogists with regard to information we find in online family trees. Can we incorporate that information without permission of the "owner."  What are we talking about? Copyright? Plagiarism? Theft? Trespass? Why would someone refer to adopting someone's family tree as "stealing?"

The problem with using such emotionally charged words as "stealing" or "theft" is that these words do have legal definitions that imply illegal activity and criminal prosecution. When we are involved in a global, online community such as our online genealogical community, we cannot resort to childish playground language. I fully understand that we do have English language usage of these words, such as the baseball term "stealing a base," but this is entirely different from using the terms in way that implies actual criminal activity.

First and foremost, it is important to understand the distinction between civil and criminal law. This is important because many people lump the two together without distinction. It was not uncommon during my career as an attorney, when people found out that I was one, to automatically assume I was involved in the criminal justice system. Essentially, in the United States at least, the distinction is that violation of criminal law involves the potential of incarceration. Civil law involves the award or claim of monetary damages or other penalties, not involving incarceration.

Further, accusing someone of a criminal act, without justification or basis in fact, can be actionable on the part of the person wrongly accused. We now lump these types of claims under the general category of defamation which includes both the common law actions of libel and slander. So it is not a good idea to carelessly throw around terms like "steal" or "theft" unless you are reasonably sure that what you are accusing someone of doing is actually a criminal act.

Breach of copyright is normally not a criminal act. However, anyone who has watched a rented video realizes that copying some types of materials has been made a criminal act and can subject the violator to incarceration. Copying family trees online is not an activity in any category that is protected by criminal laws or sanctions.

Our legal system in the United States is still struggling with how misappropriation of intellectual property should be handled, this includes the sanctions for breach of copyright and also the less distinct and harder to define area of plagiarism. Some scholars have explored the relationship between the civil nature of both copyright violations and plagiarism, but the fundamental distinction between these actions and any criminal activity remains. See for example, Plagiarism, Norms, and the Limits of Theft Law: Some Observations on the Use of Criminal Sanctions in Enforcing Intellectual Property Rights by Stuart P. Green, Rutgers, The State University of New Jersey - School of Law-Newark Hastings Law Journal, Vol. 54, No. 1, 2002. Here is a quote from the summary of that article to give you an idea of the issues involved:
This discussion leads, in turn, to a consideration of the increasing criminalization of intellectual property law and the widening gap between what the law is and what people think it should be. While powerful social norms prevent most people from even thinking of, say, walking into a bookstore and stealing a book, many people have no qualms at all about downloading pirated music or software from the Internet. Unlike legislation that makes theft of other kinds of property a crime, legislation that makes it a crime to misappropriate various forms of intellectual property seems to lack the firm foundation of social norms that such legislation generally needs to be effective. Such legislation thereby presents a kind of paradox: Whereas the mostly non-legalized rule against plagiarism is regarded, at least within the relevant communities, as having something very much like the force of law (hence, the repeated reference to plagiarism as theft, larceny,stealing, and so forth), many intellectual property laws (which, after all, are law) are regarded as illegitimate and non-binding. The article seeks to explore some of the implications of this apparent paradox.
This subject is highly complex and involves multiple levels of both social mores and statutory law that make it almost impenetrable to the layman. Although as genealogists we may become frustrated and angry when someone misappropriates what we feel is "our genealogical work product," we should be extremely cautious about clouding any real issues involved in that type of behavior by carelessly throwing out such terms as "stealing" and "theft."

4 comments:

  1. And when you use something that isn't yours, you cannot make it kosher by using the hocus pocus of attribution. To use your analogy, any more than stealing a book becomes OK when you put a sticker on it saying "Stolen from Barnes & Noble."

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    1. What do you mean by "use something that isn't yours"? What type of materials do you mean? I don't understand your concern.

      The only things I can think of that would be "yours" on a family tree would be the following:

      * A photograph you took yourself with a camera, either film or digital
      * A picture or map you drew or painted
      * A book, story, article, or description you wrote using your own language

      These, and perhaps a very few other items would be protected by copyright and if someone used them without your permission you could undoubtedly come up with the $20,000-30,000 or whatever it would cost to take someone to a federal court to enforce your copyright claim. (See http://www.copyright.gov/docs/smallclaims/)

      Almost every other image or piece of data contained on a family tree is either in the public domain or is being used with or without the permission of the copyright holder, and of course in a number of cases the copyright holder is deceased and has not legally passed the copyright on to anyone else.

      Attribution is not hocus pocus. Attribution is what you do so people know where you got your information and can judge its reliability, as well as the reliability of your entire body of work, and can find more information in the same source.

      If something is in copyright and does not have a creative commons license provided by the copyright holder, it is always correct and appropriate to ask permission to use it, and I've found that every time I ask, people are more than happy to share images, whether it's FindAGrave or a personal blog. If something is out of copyright or is not copyrightable in the first place, it is almost always appropriate to use it, but a source should be listed for the reasons given in the previous paragraph.

      But if I'm talking past you, please explain further what you meant. Have you had particular experiences that you felt violated your ownership? And was someone violating actual copyrightable ownership, or were they violating the feeling of ownership you get when you've done the work of figuring out your family history?

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    2. 1. Amy, Judy Russell has discussed this kind of thing at length. No need to pile on her examples.

      2. Attribution is hocus pocus when it is not appropriate.

      3. The three things you list that make something "yours" are significant. Calling them "only" shortchanges their importance.

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  2. Reading genealogy blogs and participating in this conversation remind me that I am primarily a historian. I'm coming at the subject with different training and background and continue to be baffled by the genealogy world's easy conflation of citations and permission.

    Anyway, I enjoyed looking at your blog. You're doing valuable work. I recently had just a moment to assist someone with a Russian/Eastern European Jewish background and since I don't know much about the subject (besides having read a lot of Sholem Aleichem, which unfortunately doesn't help with locating sources) the "research assistance" consisted of suggesting interest groups and other online resources. I was happy to see the extent of some of the available resources.

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