Who owns government records? Work Product, Ancestry, Reclaim the Records, Freedom of Information Acts, Copyright, and lots of other issues.

I recently ran across three news articles focusing on the efforts of ReclaimTheRecords.org to obtain copies of public records in Maryland and Pennsylvania. The issues discussed in the articles can be summarized with two questions:

Can a state acting through any state agent or agency contract to sell exclusive rights of access to what would otherwise be public documents and records?

When a third-party contractor pays for or is otherwise given permission to digitize public records, does the third-party contractor accrue any proprietary right due to any theory of its claim to ownership through work product?

Here are links to the three articles. 

Reclaim The Records. “The Maryland Motherlode: Births, Marriages, Deaths, and Naturalizations.” Accessed December 25, 2023. https://www.reclaimtherecords.org/records-request/31/.

Moyer, Justin Wm. “How Genealogists Got Millions of Md. Records Online for All to See.” Washington Post, December 24, 2023. https://www.washingtonpost.com/dc-md-va/2023/12/25/maryland-genealogical-records/.

PennLive.com, Spotlight PA | For. “Inside the Pa. Court Case Pitting a Genealogist against Ancestry.Com.” pennlive, December 25, 2023. https://www.pennlive.com/news/2023/12/inside-the-pa-court-case-pitting-a-genealogist-against-ancestrycom.html

These and many other issues are raised in the context of the efforts of Ancestry.com and other companies to assert ownership over public domain works and public documents and records. A particularly egregious example is when a publisher or an online graphics website "republishes" works that are clearly in the public domain and then pretends to have copyright in order to charge for copies. Another example that is closer to genealogist's interest is when a large genealogy company "buys" the right to digitized records and then charges a fee to view those same records by asserting either a copyright interest or a "work product" interest or both. 

Genealogists benefit from the more available digital copies but the conflict comes when the same records supplied to the large genealogy company are otherwise public records and should be freely available to the public under almost all state Freedom of Information Acts. all 50 states and the District of Columbia have freedom of information laws. These laws are also known as Sunshine Laws, Public Records Laws, and Open Records Laws but those laws are meaningless if the state sells the right to control access to the covered records to a third party company that then claims ownership of the documents. 

Billions of records are presently in this category. One illustrative example of the manufactured complexity of this issue can be viewed in Ancestry.com's 7,166 words long Terms and Conditions. See https://www.ancestry.com/c/legal/termsandconditions#:~:text=You%20agree%20that%20you%20will,your%20use%20of%20the%20Services You might be surprised and perhaps concerned about your own personal liability for using the Ancestry.com website. I should also add that every other large online genealogy website has similar terms and conditions. You might also want to look at section 3.2 of the Terms and Conditions about Ancestry.com's use of what information you supply to the website.

Paragraph 2.1 of the Ancestry.com Terms and Conditions, entitled Intellectual Property Rights to Ancestry Content, simply restates basic copyright law. It is also interesting that despite the fact that the vast majority of the actual records hosted by Ancestry.com are not subject to copyright claims, a copyright notice is placed on each collection of records including U.S. Census Records. 

There is no mention of any claim to "work product" in any part of the Ancestry.com website. This is not surprising since the only legal meaning of the term "work product" is as follows:

The legal term “work product” refers to materials such as writings, notes, memoranda, reports on conversations with the client or witness, research, and confidential materials that an attorney has developed in anticipation of litigation or for trial.

Work product is generally privileged, meaning it is exempt from discovery. However, there are exceptions1. Work product is divided into two categories: ordinary and opinion.

Ordinary work product is the result of gathering basic facts or conducting interviews with witnesses, and is discoverable if there is a showing of substantial need, like a witness that becomes unavailable.

Opinion work product is the record of an attorney’s mental impressions, ideas or strategies, and is almost never subject to discovery.

For reference see https://www.law.cornell.edu/wex/work_product

Despite the legal issues involved, genealogists benefit from the online access of records from around the world. But it is sad that both governments and some large online genealogy databases claim ownership of otherwise public domain or public records merely from having paid to digitize the records under claim of contracts. 

More about this later.