What do I own of my genealogy, if anything?

During a number of previous posts, I reviewed the company ownership of various of the larger commercial subscription genealogy companies. Many genealogists are using these online services to store their own files. In this post, I examine the issue of the ownership of user placed online files. Indirectly, the ownership of the commercial subscription websites impacts ownership or control of everything they (the companies) post online including your own personal files.

The online subscription websites offer services which include:

• Selling products such as CDs, Maps, Books, Magazines etc.
• Providing online resources such as census records, vital records and many others both for free and for a fee.
• Offering space for storing user files of genealogy either for free or for a fee.
• Providing a forum for social networking either free or for a fee.
• Providing or selling support services including classes, online tutorials and other resources.

Even though the subscription sites offer a variety of functions, it is my experience that the commercial subscription sites are mainly used either for research or to share user-generated genealogy files online. There is no doubt that, at least, the commercial subscription websites consider most of the information on their sites to be owned by the company. For example, here is a statement from the July 6, 2009 Terms and Conditions of Ancestry.com:

Ancestry.com contains graphics, information, data, editorial and other content accessible by any registered Internet user and similar content which is accessible only to our subscribing members (“the Content”). Whether in the free section or in the subscription section of the Service, all Content is owned and/or copyrighted by Ancestry, or third party providers and may be used only in accordance with this limited use license. Ancestry.com is protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws.

This expressed claim to ownership is complicated by the application of copyright law. The U.S. Copyright Law is contained in Title 17 of the United States Code.  There are two concepts set forth in the statutes that apply to the claims made by commercial genealogy sites, they are compilations and collective works.  From Section 101 of the Statutes:

A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.

A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works.

 Section 103 deals with these two topics:

§ 103. Subject matter of copyright: Compilations and derivative works

(a) The subject matter of copyright as specified by section 102 includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

 In other words, despite ownership claims to the contrary, subscription websites cannot claim either copyright or ownership of "preexisting material." If the preexisting material is in the public domain, incorporating it into an otherwise copyrightable work, does not make the preexisting work subject to either ownership or copyright. For example, since works by the U.S. government are not normally subject to copyright, incorporating a U.S. government document such as a draft registration card, into an otherwise copyrighted database does not make the card itself subject to a copyright.

The real issue is the status of user submitted records. What if I load my family tree file into Ancestry.com or My Heritage or any other of dozens of similar online programs? Who "owns" the file that is uploaded? With free websites, there is no issue of a failure to pay the service fee, but even in free sites, there are some really interesting legal issues concerning ownership.

If you have been following my previous discussion, you will know that I submit that lists and facts and figures cannot be copyrighted and also are not owned. If I record my birth date, I do not have either an ownership right in the date, nor do I have any expectation of copyright claim to the date and place. But to repeat, you can claim ownership to the method or design of the presentation of the dates and places.

Then, who owns the uploaded file? Do I retain ownership in some fashion? Or does ownership pass to the subscription website? Or is ownership an issue at all? If you take time to read the disclaimers on the subscription websites, you will understand that you have little or no control over the data in "your" file once it is posted online. Here is another example of wording from the MyHeritage website:

We reserve the right, in our sole discretion, to reject, refuse to post or remove any content posted by you and/or any family site, or to restrict, suspend, or terminate your access to all or any part of the Website and/or Service at any time, for any or no reason, with or without prior notice, and without any liability, financial or otherwise. We also reserve the right, in our sole discretion, to reject, refuse to post or remove any family site at any time, for any or no reason, with or without prior notice, and without any liability, financial or otherwise, if we deem that the family site is in breach of this Agreement in any way.

MyHeritage.com family sites that are on the free Basic plan are considered inactive if any Member or the Site manager of the site has not visited them for a period of 30 consecutive days. We may remove such inactive family sites in order to conserve resources. Prior to removal of inactive sites we will attempt to notify the site's Site manager via email, and provide an additional grace period of 30 days, after which the site, if still inactive, may be removed. We shall not be held liable for loss of data on inactive sites that are removed.

You can imagine the repercussions if one of these huge websites discontinued their online service, but it is clear that they have warned their users that they could remove all of the files without any liability.
So who owns the file you put online? Obviously, the concept of ownership is strained to its limit for the users to maintain any normally accepted concept of ownership.

I will probably have to keep going on this subject for a while.