Online genealogy documents in the public domain?

After reading the Ancestry Insider's recent post on "Can I Freely Copy Public Domain Documents? I thought I would take a crack at answering some of the questions. He starts by disclosing the fact that he is not a lawyer. I guess I can start by disclosing that I am a lawyer in Arizona. Which means that I may know little or nothing about the law in any other state, unless it happens to be the same as Arizona. As to the Ancestry Insider's other claims that parts of his body are known by the State of California to cause cancer if lit on fire and stuffed up your nose. I can't really say that I am aware if that same holds true for any part of my body, since I have not actually tried the experiment and I haven't been to California for a long time.

Anyway, here it goes. By the way, none of this is legal advice. They are totally my opinions and may not apply to any particular legal issue you or anyone you know, may have. So there.

When we got our first software programs, recorded on cassette tapes, back in the late 1970s, They may or may not have had a copyright mark on them but they had little else, usually not even instructions. Little by little we watched the copyright notices grow and grow. It didn't really matter much, because there really wasn't any practical way to copy the programs anyway.

One day, we began to notice a new tactic by the software developers. The technology had progressed to the extent that it was really quite simple to make a copy of a software program. There was also a huge supply of really trashy "public domain" software programs. In fact, at the time, my computer store (did I mention I used to own a computer store and a software company?) had a huge library of PD software that anyone could come into the store and copy. There is still a huge amount of this software available, now mostly called Freeware, and it is by and large just as trashy as it used to be, with some notable exceptions. Programmers who wanted to get "known" in the software community, would often write a free (public domain) software program just to get some "free" publicity. Now, free has become all the vogue. Think OpenOffice or Google.

There is a difference between free and public domain. It is probably true that most public domain programs are free, but not all free programs are in the public domain. FamilySearch.org is "free" but there is no question that it is not in the public domain. So what does it mean if a document or program is in the public domain?

Quite simply, it means that the creator has either relinquished all claims to copyright protection or that through age or use the item is no longer protected. In the U.S. copyright protection only extends back a certain length of time. The rules are really complicated and are growing more complicated, but some, not all, older documents are in the public domain and no longer have copyright protection. If I am the creator of a document, then I can voluntarily relinquish my claim to a copyright and declare that my work is in the public domain. But the present presumption is that the document or other work is automatically covered by copyright law, even if the creator makes no mention of a copyright claim at all.

If you copy a work (almost anything that could be considered an “original work of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works) you always run the risk that the work is covered by copyright. This is where copyright law gets real complicated.

Back to the Ancestry Insider, remember those ever growing copyright claims that began to be included with any software  you purchased? No, well go to the store (or online) and buy a program. Open the box and you will likely find a card or booklet with a long copyright notice. In any event, before you can load the program and activate it, you will be required to agree to a long license agreement. Finally, the attorneys who work for the software companies decided that when you purchased a program, you didn't really intend to buy it, but to borrow it from the software company and the "software license" was born. This whole idea was crazy. I spend X-hundred dollars buying a super software program and I don't even own the program. I don't even own the disk. What am I buying? The right to use the program under very specific conditions.  I can't tell you how galling it is to be an attorney and see this happening right before my eyes.

But what can I do about it? Nothing. If I don't want to agree to the license, then I don't have to "buy" the program. As the Internet came along, the method of delivering software changed. Many (probably most) programs, such as Ancestry.com, were sold in digital format exclusively. You not only did not purchase anything, you didn't get anything for your money except some magnetic spots on your hard drive. But the license was still there is in its ever increasing form.  Enough tirade.

Question #1: Are the "software licenses" including those for online services such as Ancestry.com, enforceable contracts?
Answer: Did you guess right? The answer is yes. Here is one statement made by a court: [The user] cannot disavow the burdens of an agreement where it has affirmatively accepted the agreement's benefits. In other words, if you use Ancestry.com, your use of the website software indicates that you have affirmatively accepted the agreement's benefits. Some states have specific laws that enforce software agreements. So the issue of whether or not the software licenses are enforceable does not revolve around any general contract law provisions, but is likely an already settled fact of life in practically every U.S. jurisdiction.

Question #2: What if you are underage? Is the contract valid?
Answer: Of course, if you can use the software, you are bound by the agreement.

Question #3: If you require assistance using a computer, and someone else clicks the box without making you aware of the agreement, are you still bound by it?
Answer: Really simple stuff. Of course, if you can use the software, even with assistance, you are bound by the agreement. You are presumed to have read the agreement, even if you didn't actually do so. So you can check the box and use the software or not check the box and not use the software. But if you check the box, you are bound by the agreement, even if you don't read it.

Question #4: What if you use Ancestry.com Library Edition? You didn’t enter into the contract. Can you freely copy Ancestry.com’s content?
Answer: A tiny bit more difficult. I am not sure where he is going with this question. Ancestry.com allows you to copy almost all of their content, they even give you instructions on how to do so. License agreements usually address issues like resale, reproduction of the database in whole or part, retransmission and other such things. If I open a Microsoft Word file, I can certainly use the program to create a page of text and I can even sell the text. What I can't do is reproduce the Word program and sell it. Usually, libraries and other institutions have their own rules about making copies.

Question #5: Is the library supposed to do something that restricts how you use Ancestry.com content?
Answer: Depends on the license given to the library or other institution. The library would have to abide by whatever provisions were contained the software license they operate under.

Question #6: The contract (terms and conditions) states that Ancestry.com can change the contract without any notice to you besides changing a date on a webpage. Give me a break. Is such a carte blanche contract term enforceable?
Answer: Yep. Do software companies always win? Nope.

Have you even wondered why it is so difficult to find a reference to the location of the original documents on Ancestry.com? Now you know why. They don't make money by telling you where you can get the documents for free.

If you have any further questions. I would be glad to give my unvarnished opinion. Do not believe everything you read.