Did Ancestry Violate Copyright Law? . . . . Part 3of 4: Fair Use

We've explored the Field v. Google, Inc., case thus far and learned about the facts of that case and some of the holdings. A number of commenters have insisted (and still insist) that because the court found Google's caching to be "fair use," the same result would obtain with respect to Ancestry's Internet Biographical Collection.

I do believe that the matter of "fair use" is the most important issue in the analysis. But, I've said here that these cases are highly fact-specific. So before we get to the fair use analysis, let's take a look at some of the factual matters that various commenters have raised since we started this series.

Janice said:

I do have two comments. I'm not sure it changes things in a legal sense, but Ancestry also provided an option (to subscribers only, and even after IBC became "free") to click and save the cached page to their "Shoebox"--a holding area of documents that subscribers are interested in.

Also, the initial Ancestry.com source description calls the IBC a "database-online," not a search engine (I have a screen shot of that if you need it).

Jeff Scism said:

Ancestry through a spokesperson clearly stated what the intent was initially, "the websites have VALUE. And even if the site owners were to remove the contents, the pages would remain available through Ancestry.com"

That indicates to my simple mind that, since only paying customers had original access, that Ancestry had premeditated their intent to take and sell the content, despite what the site owners decided to do with their creations. Their obvious attempt to actually hide the source pages at first and only provide a sanitized copy of the data- removing source website info, and identifying graphics, and copyright notices, shows that the intent was to steal and sell the content.

Another issue not addressed is that Family Tree maker, a genealogy program they sell, still has this search built in, and provides the data directly for merging into your family file, sourcing it as Ancestry's collection, and no direct reference to the authors.

And Ancestry said on August 28, 2007:

Ancestry.com just added the Internet Biographical Collection which is a compilation of genealogy information across the web.

I also recommend that you check out the comments on Dick Eastman's blog here and here.

Now, on to "Fair Use."

"Fair Use" is a limitation on the exclusive rights of a copyright owner. It's contained in section 107 of the Copyright Act. [Title 17, United States Code]. The Act says that use "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research is not an infringement of copyright ." The United States Supreme Court has stated that the statute "calls for case-by-case analysis." [Campbell v. Acuff-Rose Music, Inc., 510 US 569 (1994)]. In that respect, a court must analyze at least four factors:

(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted
work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted
work.

Factor 1: Purpose and Character of the Use

In the case of Campbell v. Acuff-Rose Music, Inc., the Supreme Court said about this first factor of the "fair use" analysis:

The enquiry here may be guided by the examples given in the preamble to § 107, looking to whether the use is for criticism, or comment, or news reporting, and the like . . . . The central purpose of this investigation is to see . . . whether the new [use] merely “supersedes the objects” of the original creation . . . or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative” . . . . [510 US at 578-579]

The Field court looked to a case decided by the U.S. Ninth Circuit Court of Appeals to understand how to apply this "transformative" rule. (As a trial court within the Ninth Circuit, which covers the Far West, the federal district court in Nevada is obligated to follow the precedent of the Ninth Circuit Court of Appeals).

The case which the court followed is called Kelly v. Arriba Soft Corp., 336 F3d 811 (2003). In that case, the appeals court held that the use of copyrighted images that were displayed on Internet web sites by an operator of a "visual search engine," which displayed search results as “thumbnail” pictures, was “fair use” of copyrighted images.

But before we jump to any conclusions about Ancestry's IBC, it's important to understand why the court came to that conclusion in the Kelly case.

Arriba, now known as "Ditto.com," developed a computer program that “crawls” the web looking for images to index. This crawler downloads full-sized copies of the images onto Arriba's server. The program then uses these copies to generate smaller, lower-resolution thumbnails of the images. Once the thumbnails are created, the program deletes the full-sized originals from the server. Although a user could copy these thumbnails to a computer or disk, the user cannot increase the resolution of the thumbnail; any enlargement would result in a loss of clarity of the image.


The court found Arriba's use of Kelly's photographs to be "transformative," that is, Arriba's use "added a further purpose or different character" to the photographs. The court said:

Kelly's images are artistic works intended to inform and to engage the viewer in an aesthetic experience. His images are used to portray scenes from the American West in an aesthetic manner. Arriba's use of Kelly's images in the thumbnails is unrelated to any aesthetic purpose. Arriba's search engine functions as a tool to help index and improve access to images on the Internet and their related web sites. In fact, users are unlikely to enlarge the thumbnails and use them for artistic purposes because the thumbnails are of much lower-resolution than the originals; any enlargement results in a significant loss of clarity of the image, making them inappropriate as display material. [336 F3d at 818].

The court observed that Arriba's thumbnails of Kelly's photographs "are not used for illustrative or artistic purposes and therefore do not supplant the need for the originals." [336 F3d at 820]

The question now is whether, using this reasoning, Ancestry's use of others' content in its IBC was "transformative." I would note first that, unlike Arriba with respect to Kelly, Ancestry is in the same field of endeavor as are the copyright owners whose material was used in the IBC. Ancestry's purposes seem to have been the same as that of the content owners. Ancestry initially described the IBC as a "collection," not a search engine. It would thus appear that Ancestry simply intended to make available on its genealogical site, initially for a fee, the exact same content owned by others. Unlike the "thumbnails" of "much lower-resolution than the originals" in Kelly's case, the entire content of any collected site was available in the IBC. In other words, Ancestry's use merely superseded that of the content owners. This is not a transformative use.

It cannot be said that either Field or Kelly, either individually or taken together, endorsed as "fair use" anything denominated a "search engine." Again, the determination of "fair use" is fact-specific. For example, Google's search engine operates somewhat differently than did Arriba's. Along these lines, it is not at all clear that the IBC operated, or was intended to operate, like Google's or Arriba's search engines. The term "search engine" in reference to the IBC did not appear until after the controversy erupted.

For another example, is Google Books merely a "search engine"? I think as it was originally conceived, it was more of an electronic library than a search engine. Hence, the concern by publishers. But, as it now operates, Google Books is a bit of both search engine and electronic library. With respect to certain items now beyond copyright protection (those for which the user gets "Full View"), the electronic library aspect is fully operational. With respect to those items given the most protection (those for which the reader is given only a "Snippet"), Google Books is almost entirely a search engine. In the full electronic library mode, Google's use clearly supersedes that of the original content creator.

Ancestry's IBC, as we originally understood it, was more like Google Books than like Google's "simple" search engine.

The court also considered the commercial use of Kelly's work:

While such use of Kelly's images was commercial, it was more incidental and less exploitative in nature than more traditional types of commercial use. Arriba was neither using Kelly's images to directly promote its web site nor trying to profit by selling Kelly's images [336 F3d at 818]

These do not seem to be the facts of Ancestry's use, especially when the content was behind their paid subscriber wall.

Factor 2: Nature of the Copyrighted Work

The second statutory factor, “the nature of the copyrighted work,” draws on the value of the materials used. Works that are creative in nature are closer to the core of intended copyright protection than are more fact-based works. [Kelly v. Arriba, 336 F3d at 820]. The court found Kelly's work to be creative, as would be found as to the content collected by Ancestry for the IBC.

The court also said that the fact that a work is published or unpublished also is a critical element of its nature. Published works are more likely to qualify as fair use because the first appearance of the artist's expression has already occurred. [Kelly v. Arriba, 336 F3d at 820] The court found that these two elements caused this factor to weigh in favor of Kelly, but only slightly. The same could be said of the content included in the IBC. All of it had appeared on the Internet before it appeared in the IBC.

Factor 3: Amount and substantiality of portion used.

In Kelly v. Arriba, the court said:

While wholesale copying does not preclude fair use per se, copying an entire work militates against a finding of fair use. However, the extent of permissible copying varies with the purpose and character of the use. If the secondary user only copies as much as is necessary for his or her intended use, then this factor will not weigh against him or her. [336 F3d at 820-821]

The IBC seems to have copied the entirety of the works collected for the IBC. But what is the extent of permissible copying in light of the purpose and character of use in this situation?

In Field v. Google, the court said:

. . . Google’s use of entire Web pages in its Cached links serves multiple transformative and socially valuable purposes. These purposes could not be effectively accomplished by using only portions of the Web pages. Without allowing access to the whole of a Web page, the Google Cached link cannot assist Web users (and content owners) by offering access to pages that are otherwise unavailable. Nor could use of less than the whole page assist in the archival or comparative purposes of Google’s “Cached” links. Finally, Google’s offering of highlighted search terms in cached copies of Web pages would not allow users to understand why a Web page was deemed germane if less than the whole Web page were provided. Because Google uses no more of the works than is necessary in allowing access to them through “Cached” links, the third fair use factor is neutral, despite the fact that Google allowed access to the entirety of Field’s works. [412 FSupp2d at 1121]

The Field court's reasoning might apply to Ancestry's IBC if the IBC had the same function and functionality as Google's search engine. And it's not clear that the IBC operated like Google's search engine. Ancestry could have copied only a"snippet" of the collected IBC works and included a link to the original and still have accomplished a worthy purpose--much like Google Books does.

Factor 4: The Effect of the Use upon the Potential Market for or Value of the Copyrighted Work

The Kelly court said:

This last factor requires courts to consider "not only the extent of market harm caused by the particular actions of the alleged infringer, but also 'whether unrestricted and widespread conduct of the sort engaged in by the
defendant ... would result in a substantially adverse impact on the potential
market for the original.' " [336 F3d at 821, citing Campbell v. Acuff-Rose Music, Inc.]

There are several potential markets for the content collected in the IBC. Many of the content owners sell advertising space on their sites. Ancestry obviously found the content valuable enough to initially place it behind their paid subscriber wall; a content owner could license their content to some potential competitor of Ancestry's, like World Vital Records, for example. It could be reasonably said that Ancestry's actions could harm the potential market for the content owners' products. Some portion of the potential audience for the content would find it first at Ancestry's site and because of the way it initially was set up at the IBC, that audience would find no need to go to the original site. And this is particularly so if, as alleged by one of the commenters, Ancestry has linked the IBC to the Family Tree Maker software.

Based on the foregoing analysis of the cases, a court could find that Ancestry's use was not a "fair use."

Here are several points to keep in mind:

(1) What's said above is based on the premise that Ancestry's IBC is not like Google's search engine. For example, as far as we know, the IBC did not include a statement on "cached" pages that the user is viewing only a cached page. (Later, of course, Ancestry added links to the original pages). I think the two things may be factually distinguishable.

(2) Field should not necessarily be relied upon, because it's the classic example of bad facts making bad law. That is to say, to take a general rule out of that case is a bad idea because the facts are so unique and egregious.

(3) There are a lot of facts about the IBC that remain known only to Ancestry. Some of those facts may help them; some may hurt them.

(4) Nobody, not a lawyer, not the Copyright Office, nobody but a court can finally settle what is or is not "fair use."

I'm going to move our discussion of the Digital Millennium Copyright Act to tomorrow's post. In that post, I'll also address some issues that have come up in the Comments and share some thoughts on copyright protection.