On August 3, Ancestry.com — the largest for-profit genealogy company in the world — updated its terms and conditions to include new language that gives it the right to use any family photos uploaded to its system for anything it likes, forever and without limits.
Ancestry’s updates to its terms and conditions focus mainly on changes to the rights it has as a company to use photos that are uploaded by users into its system:
[B]y submitting User Provided Content through any of the Services, you grant Ancestry a perpetual, sublicensable, worldwide, non-revocable, royalty-free license to host, store, copy, publish, distribute, provide access to, create derivative works of, and otherwise use such User Provided Content to the extent and in the form or context we deem appropriate on or through any media or medium and with any technology or devices now known or hereafter developed or discovered. This includes the right for Ancestry to copy, display, and index your User Provided Content. Ancestry will own the indexes it creates.
PetaPixel spoke with Mickey Osterreicher, General Counsel for the National Press Photographers Association (NPAA) regarding the change and if he believed that such a broad set of terms was reasonable.
“It always concerns me when the rights that are being sought are overly broad. I certainly understand when lawyers write these things up that they do it for the benefit of their client or their company, but sometimes I don’t think they think about the fact that what they ask for is much greater than what they actually need,” Osterreicher says. “Until someone questions it or pushes back, it’s there. it’s one of the things that I and the NPAA stress all the time. People really need to read and understand terms of service and conditions: it’s a contract.”
“This change to the Ancestry Terms and Conditions is consistent with the manner in which other genealogy research platforms handle user-provided content,” the company writes in a blog that PetaPixel was pointed to when the company was reached for comment. “It was never intended to enable Ancestry to do anything with our users’ content other than facilitate a vibrant family history community that brings the value of personal discoveries to all.”
Ancestry says that the change was only meant to encompass the expected services of the genealogy company. It says that its goal is to connect its users by allowing them to share discoveries about their family histories with each other, and sharing photos, documents, and stories are part of that. Should a user want to make its photos private, Ancestry says it respects that.
This might be the case in spirit, but the overly broad language tells a different story.
“Even though Ancestry doesn’t take your copyright, they pretty much take everything you get by owning the copyright. You can still use the photos elsewhere, but the display rights, the right to copy, pretty much everything is given to Ancestry. You can’t revoke the sublicense or get paid for it,” Osterreicher says.
He explains that to the extent that Ancestry would like to use the images for the purposes that the company was created for, that would be all that they would really need in an updated set of terms. But instead, the company only barely stops short of claiming the copyright but is essentially covered to do everything that owning the copyright to the image would grant. Even where the company was not specific, it has covered itself by saying that it still has rights to technologies that may not even be discovered or developed yet.
Ancestry admits that it received feedback about the update and explains that users can still revoke the rights given to Ancestry should they desire.
Notwithstanding the non-revocable and perpetual nature of this license, it terminates when your User Provided Content is deleted from our systems. Be aware that to the extent you elected to make your User Provided Content “public” and other users copied or saved it to the Services, this license continues until the content has been deleted both by you and the other users.
While it is true that deleting any photos from Ancestry’s server would remove the company’s rights to them, the second section says that specifically deleting something doesn’t necessarily complete the process.
“Even if you took the photo down or terminated [your Ancestry subscription], if somebody else posted the photo, Ancestry continues to own it,” Osterreicher says.
Another point that Osterreicher raises is that family photos taken by a hired portrait photographer or a photo studio are likely commonly uploaded. In those cases, he says that most of the time the user doesn’t own the rights to that copyright — the photographer does.
“There are two things going on here,” he says. “One, a discussion about your own images and whether you want to grant those rights. Or the second, if you’re posting images someone else owns rights to and if you may be violating their copyright.”
Regardless of the intent of terms and conditions changes, Osterreicher says it’s important for people to look at user agreements the same way they would look at the contract to buy a car. It is unlikely that someone would just buy a car without reading the fine print about the interest rates, for example. He says that in the rush for instant gratification, many people overlook important aspects of terms and conditions. In this case, Ancestry asked for much more than it needed, and the only way that it would get changed is if enough people called for it.
“The analogy that I normally make is that copyright is very much like owning a home as opposed to renting or leasing. There are many things you can do with that home when you have the deed, and that is the same with copyright. So in a way, even if you own the copyright and grant the license, it’s like someone can come into your house and do whatever they want,” he explains. “You can still live there, and own it, but they are free to do whatever they want, whenever they want. I don’t think most people think of it that way when it comes to pictures.”
Image credits: Background of header photo licensed via Depositphotos.