Friday, January 30, 2015

Project Blue Book, John Greenewald and the Latest


(Blogger's note: This is the latest from John Greenewald about the uproar over the Project Blue Book files. Although annoyed at the MSM for not understanding the story and believing that this was something new, I am not annoyed at John for getting the material published at his Black Vault site. It was a service to all of us interested in this. And yes, I have used the Fold 3 site, but then, I do have a complete set of the Project Blue Book files on microfilm. Sometimes it was easier to locate a case at Fold 3 then in the confusing filing system used for Project Blue Book. Anytime information is restricted, for whatever reason, it is a sad day for all of us.)

January 29th, 2015 – It is with great frustration to announce, that Ancestry.com, and their subsidiary Fold3, has laid down a claim to copyright on the Project Blue Book material – which has long been labeled as “public domain” by the National Archives & Records Administration (NARA).
   
Ancestry.com is claiming ownership to the digital version of this material – despite me having records that Fold3 doesn’t even have in their archive and I received under the FOIA starting back in 1996.  They simply claimed it was 100% theirs and I was forced to remove it.

Because of my attempt with properly crediting Fold3 with a DIRECT LINK to their site as partial credit for some of the material, they used that show of proper credit by me to issue a copyright claim under the Digital Copyright Millennium Act (DCMA). Anyone who knows anything about the law can attest; you are “guilty until proven innocent” so this was the beginning of the end. I never hid from Fold3 as a source, and even brought them up in some media interviews I did take part in, which were all cut out. No one cared about that part of the story – this new archive was what they wanted to report on because it was simple, straight forward, easy and free. And people loved it.

Based on an evidence-less claim I was forced to remove the entire site.  That’s right, there was ZERO evidence submitted to my web hosting provider of ownership or copyright or license, but rather, they simply placed the accusation which is all it takes.

In good faith, I took the site down in hopes a compromise could be reached. They already had credit given on the front page of the site for some of the material, and that link alone resulted in a 12%+ increase in their entire statistics since they posted records in 2007, and my link multiplied their weekly hits by 10x, yes ten times, in only 5 days (statistics are posted on their page, so I am not guessing on those statistics but rather took notes).  

I stated there was much more information here than is cited to Fold3, but they didn’t care.  I offered giving them a full 100% “share of voice” banner ad to advertise Fold3 (in addition to the link already driving them traffic), or to sell ads with no profit share to me, and they didn’t care. I asked if they would work with me on any capacity, because CLEARLY interest was being generated by my audience (and obviously not by theirs) but they didn’t care.

In the end – they offered I become a member of their affiliate program – and offer a link to them in exchange for a portion of sales generated. ie: You have to sign up with them, pay a membership, and they give me a percentage.  I quickly declined. (Blogger's note: So it is clear, there are no fees required for viewing the Project Blue Book files. There is a requirement for membership, but there is no cost there either.)

This is public record material, and it should remain so. To lay ‘exclusive’ claim to it in the digital world, when both sites (my site and theirs) offer it for free – is ludicrous and a waste of time and money for everyone.

But at the end of the day, I am proud to have brought attention to information that although has been available for quite some time – the public at large never knew it existed.  I will let Google Trends prove my point.  Here is the popularity of Project Blue Book, since 2005, and a graph relating to people searching for information on it. (Blogger's note: The graph simply will not print here but there is a tremenous spike in traffic just as John has suggested.)

I am proud to be the one who caused such an uproar of interest by the public and the media (despite some erroneous facts in the reporting).
Did some media outlets misreport? Yes, and if this page was still up, there was a message on the front page setting the record straight. 

But, call it corporate greed, a legal loophole, or a grey area in the copyright law, all of that is gone in the name of getting your personal information, and your credit card, by a corporation that has a wallet much thicker than mine. I’ll let you decide what the right label is to put on this entire mess.

Does all of this upset you? Me too!  And I invite you to express your thoughts to Ancestry.com, Fold3, and anyone else you’d like to express your disappointment:

Fold3
355 South 520 West
Suite 250
Lindon, UT 84042
Ph 1-800-613-0181
support@fold3.com

Ancestry Inc. Corporate Headquarters
360 West 4800 North
Provo, UT 84604
Ph 801-705-7000
Fx 801-705-7001
support@ancestry.com  

In 18+ years, I’ve never seen anything like this, and it is a sad day for the world of public domain, public information, public record and the idea of “Freedom of Information”.

I have vowed from day 1, never to fall into the pit of desire of placing a price tag on PUBLIC information. It’s a shame I am very much alone in that belief.
Sincerely,

John Greenewald, Jr.
The Black Vault
http://www.theblackvault.com

24 comments:

albert said...

@John,

You might try eff.org for possible legal assistance, and also Ken White at popehat.com (both pro bono)
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IANAL, but copyright doesn't distinguish between different forms of presentation. Website design can be copyrighted, but not the data. DCMA is often used to intimidate, with no legal basis.
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If the material is public domain, then they have no case.
.
...

David Rudiak said...

Anything government published (photos, documents, etc.) is automatically public domain and cannot be copyrighted, at least as I understand copyright law. The only exception I can think to this is if fold3/ancestry paid for the scanning of the files and Greenewald used their scanned files instead of scanning his own.

Fold3 and ancestry.com would almost certainly not prevail in court, and its conceivable Greenewald might even be awarded damages and attorney's fees. This is all if he can get some attorney to take the case pro bono. Big companies like ancestry/fold have deep pockets and can afford to litigate for lengthy periods of time, of course intimidating to the little guy who doesn't have such resources.

Frank Warren said...

Evenin' Men,

Here's a link to some pertinent info specific to this issue:

http://tinyurl.com/o2pojyn

and a snippet:

"it’s the courts that matter ... and they have held that shrinkwrap and clickwrap licenses are valid and enforceable contracts, even if the subject of the license is in the public domain. That’s because, the courts say, the user agreed to the contract terms."

If the take down notice was solely based on copyright infringement, I believe John can have that reversed via a counter-notice arguing the fact that the Blue Book Files aren't protected by copyright as they're the work of the United States government. However, this would only be a temporary reversal, as the a fore mentioned article illustrates, there is precedent for TOS violations, clickwrap agreements and browsewrap agreements.

Given that the files were not only data mined from Fold3–the deeds were all documented step-by-step at ATS.

Cheers,
Frank

Frank Warren said...

Ooops!

The last line should have read:

Given that the files were not only data mined from Fold3–the deeds were all documented step-by-step at ATS (self-incrimination) and I'm guessing the attorneys for ancestry.com see that as a gift.

Cheers,
Frank

Frank Warren said...

Here's some precedent:

The case that started the "contract as copyright" ball rolling is ProCD, Inc. v. Zeidenberg, 86 F.3d 1147 (7th Cir. 1996). The ProCD case came about when grad student Matthew Zeidenberg bought a business telephone database on CD, called SelectPhone, from ProCD. Zeidenberg posted the directory listings on a web site, for a price that was lower than ProCd’s. Telephone listings are not copyrightable, but the CD included a license ... which Zeidenberg had to click through in order to install the software. The license prohibited copying. ProCD eventually found out, and sued him.

Zeidenberg lost. Although the telephone directory listings that Zeidenberg copied were not protected by copyright, the Seventh Circuit court of appeals decided that the license agreement was valid and enforceable as a contract. Zeidenberg accepted the contract, the court said, by clicking through. Bottom line: ProCD achieved copyright protection for unprotectable facts through a standard (as in not negotiated) license.


Cheers,
Frank

BlackVault said...

I figured I would pass this on for the court of public opinion: http://en.wikipedia.org/wiki/Bridgeman_Art_Library_v._Corel_Corp.

Frank Warren said...

Additionally, there is an argument that could be made for copyright via "Compilations of data or compilations of preexisting works."

In Fold3's TOS it states:

"Each Website is also protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other copyright laws."

and

"Bots, crawlers, spiders, data miners, scraping and any other automatic access tool are expressly prohibited. [my emphasis] You agree not to circumvent, disable or otherwise interfere with security related features of the Websites or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Websites or Services or the Content therein."

Cheers,
Frank

Frank Stalter said...

"Here's some precedent:

The case that started the "contract as copyright" ball rolling is ProCD, Inc. v. Zeidenberg, 86 F.3d 1147 (7th Cir. 1996)."

I don't see a precedent here. A guy copied an entire CD and tried to sell it himself. There are plenty of fair use exceptions even when there is a copyright involved . . . .comment and criticism, education and so on. I've already told John he hasn't made a very clear argument about this issue. After reading his article, I had to research myself to understand that Fold3 is the site hosting these files and they are available there for free.

bob spearing said...

Perhaps petitioning the White House to remove fold3's copyright on Project Blue Book files. I believe you need 100,000 signatures to generate a WH response. I am sure the UFOlogy community is large enough to get this done.

bob spearing said...

Perhaps petitioning the White House to remove fold3's copyright on Project Blue Book files. I believe you need 100,000 signatures to generate a WH response. I am sure the UFOlogy community is large enough to get this done.

Frank Warren said...

Mornin' Frank S.,

The gist re the example or precedent with ProCD's (successful) suit is that the telephone listings aren't protected by copyright, yet the court ruled in favor of ProCD because "the license agreement was valid and enforceable as a contract"

Like the telephone listings–the Blue Book Files aren't protected by copyright prima facie; however, as mentioned above there is an argument (albeit a weak one in my view) for copyright via "Compilations of data or compilations of preexisting works."

The biggest issue is the so-called "click agreement"; in this case with Fold3 it's more profound because one has to register with Fold3 and in doing so, agree to their TOS with the a fore mentioned violations noted therein.

Cheers,
Frank W

David Rudiak said...

Frank Warren,

So as I now understand it, Greenewald/Black Vault were accused of copyright violation because they data-mined Fold3's already digitized collection of BB files, also in violation of Fold3's license agreement.

It would seem Greenewald could still put the BB files online, but only if he did his own scanning and digitizing of the public domain files.

It might also be argued that while he may have data-mined the Fold3 collection, he also cleaned it up to make it more readable and reorganized it into distinct case files, thus it was not an exact replica of Fold3 but a derivative version. I think this is now getting into very gray areas of copyright law that only court cases can decide.

David Rudiak said...

To continue with the legal hair-splitting:

It might also be argued that since Fold3 offered the PBB files for free to the public, there was never an expectation of profit from their endeavor, unlike, say the copying of public phone numbers off a commercial CD, whose obvious goal was profit.

Against this Fold3 might argue that the PBB files were like a store's advertised "loss leader" to draw people into the store and hopefully make other purchases. Thus while making no money from the PBB files themselves, they had an expectation of creating profit by selling full memberships to some fraction of those drawn to their website by the free files.

Frank Warren said...

Mornin' David,

The quickest way to get something taken down is by a copyright infringement claim via TDN.

From a purely legal standpoint, as mentioned above there is somewhat of a copyright argument by means of compilation; if John countered, a judge would have to make that decision.

However, the biggy, is not the copyright issue in my view–its the "TOS agreement."

The very program created to do the hack is called FootnoteReaper–A project to scrape content off fold3.

http://tinyurl.com/nvrjhyx

Cheers,
Frank

David Rudiak said...

Morning Frank,

But Greenewald could do his own digitation of the files and put them online with no copyright violations, right?

Frank Warren said...

David,

Yes, correct, as he has been doing since he was 15 years old.

I might add, (I believe) John removed the content by his own volition, opposed to having his ISP remove it.

Technically, he could leave it up; let the ISP remove it, file a counter claim (wherin the ISP has to restore the site) and do legal battle (David and Goliath).

Cheers,
Frank

albert said...

@David

"...The only exception I can think to this is if fold3/ancestry paid for the scanning of the files..."
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It wouldn't matter.
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The fold3 TOS seems pretty clear though. TOS cases have nothing to do with copyright law per se. fold3 is an aggregator, like thousands of others in the business of monetizing public domain material. Some even charge for material you can get for free elsewhere. What TOS cannot do, is require you to agree to something illegal.
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I gotta go...

Rusty Lingenfelter said...

While I imagine Fold3 would have a difficult time, I think they could make the case that "those" digitized copies, which I expect are identifiable are their property. While this is unfortunate, I don't blame them. They made the investment, they deserve to reap the benefits. As others have said, either pay them for their work (via their affiliate program) or duplicate their work (digitize the files yourself). The interesting thing about copyright is that it relies on the holders diligent defense. Please don't get me wrong, I am completely opposed to nearly anything an organization ending in "AA" says, but in this case, I see Fold3's point. Before someone mentions "fair use", duplicating the entire collection goes beyond fair use. It appears the TOS would prevent a fair use claim. Disagreeing with some, I don't think he'll win if he goes to court. IANAL, but spent quite a lot of time in the past few years studying intellectual property rights and existent cases. Rather than starting a legal defense fund, I would start a fund to scan the documents.

Frank Stalter said...

You just can't create a policy out of thin air that overwrites well established law. There is recourse to spurious copyright infringement claims but you have to stand and fight.

albert said...

Guys,
As Frank patiently pointed out, this is not a copyright case, it's a TOS violation case. Outfits like fold3 use TOS 'agreements' to get around public domain usage rights.
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If fold3 filed a copyright infringement case, they would lose, and they are smart enough to know that. They would win a TOS violation case though.
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Read their TOS, read a EULA for some software product. They are draconian, they are written by lawyers, and generally unbeatable.
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'Fair use' doesn't apply to public domain works. fold3 doesn't 'own' the files, or a copyright on them.
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I gotta go...

kg said...

Re Copyright law: Copyfraud.

Re Contract law: Anybody who has saved the PD files from the temporary internet presentation can post them legally.

Re copyright of reproduction: Bridgeman v. Corel. Copyfraud!

DMCA takedown is IMHO only for copyright not for contract issues.

albert said...

@kg
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Bridgeman v. Corel makes no mention of TOS or any stipulations. Bridgeman should have had a TOS set up before allowing distribution.
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fold3 is NOT a copyright case. Fighting the TOS is a fools errand. There are already precedents.
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John could win the DMCA issue, but not the TOS, unless fold3 decided not to file a TOS suit. That's highly unlikely...
...

Sarge said...

Ancestry.com has recently started to tighten its public access and has closed many if not all of their once public access services and sites.
This may be no more than an attempt to insure that their now paying subscribers have sole access to their material.
Giving them credit to start with may have been a mistake since the files were public domain.

albert said...

@Sarge
These outfits are in business to make money, period.
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Example: there are at least two websites that provide charitable organizations tax returns (public by law) for free.
There are at least two websites that charge for the same thing. They call that a 'business plan'. I call it a 'blood-sucking parasite'. The web is full of it; companies selling public domain material.
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I'd almost like to see a return to IP addresses, and the demise of URLS and domain names. It might reduce the clutter.
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I gotta go...