RootsTech 2015

Some people eat, sleep and chew gum, I do genealogy and write...

Tuesday, November 25, 2014

Swedish Research Tips



Many of those people I know personally, including my wife, have ancestors from Scandinavian countries and particularly Sweden. Recently my wife recorded a short introduction to Swedish research. This video is hosted on the Brigham Young University YouTube.com Channel along with many other both long and short videos. This growing inventory of instructional videos is fast becoming a valuable source of basic instruction.

Can I sue for plagiarism?

To rephrase the question posed in the title to this post: can I maintain a separate cause of action in a court of law based on plagiarism as opposed to claims for copyright infringement? The complicating factor in answering this question in the United States, involves the issue of jurisdiction. In the U.S. Federal District Courts have original jurisdiction over copyright claims. This means that you cannot file a copyright action in a local or state court. So how do you separate a claim for plagiarism from a claim for copyright infringement?

This is a recurrent issue in the larger genealogical community. The most common form of complaint comes from a genealogist who "shares" their family tree (i.e. pedigree and/or research) with another person, usually a relative, only to have the relative copy and publish the family tree in its entirety without attribution (i.e. giving credit to the "originator"). Of course this scenario raises multiple issues including a claim of plagiarism.

Despite the common folklore level of belief about both plagiarism and copyright, both claims arise from a concept of ownership of ideas and concepts. The distinction between the two is extremely blurred. To begin to understand the basic distinction, it is necessary to understand the concept of a "cause of action." In the legal world, the phrase "a cause of action" refers to a legal claim that can be the basis for filing a lawsuit in s court. Learning the distinction between what is and what is not a cause of action is at the heart of one of the main skills acquired by attending law school. The complete knowledge of this skill is only learned after considerable active trial experience. Failure to "state a cause of action" when filing a lawsuit can be the basis for nearly automatic dismissal of the lawsuit. One of the most common responses in an answer to a complain filed in the court is that of "failure to state a claim upon which relief may be granted." In some instances, stating such a claim may involve reciting a long list of elements.

For example, a claim for fraud, in many jurisdictions, requires stating anywhere from five to twelve separate elements (or claims) each of which must be proven to maintain the action. Here is one description of the elements of a claim of fraud from the California Civil Jury Instructions Section 1901:
[1. (a) That [name of defendant] and [name of plaintiff] were [insert type of fiduciary relationship, e.g., “business partners”]; and
(b) That [name of defendant] intentionally failed to disclose an important fact to [name of plaintiff];]
[or]
[1. That [name of defendant] disclosed some facts to [name of plaintiff] but intentionally failed to disclose [other/another] important fact(s), making the disclosure deceptive;]
[or]
[1. That [name of defendant] intentionally failed to disclose an important fact that was known only to [him/her/it] and that [name of plaintiff] could not have discovered;]
[or]
[1. That [name of defendant] actively concealed an important fact from [name of plaintiff] or prevented [him/her/it] from discovering that fact;]
2. That [name of plaintiff] did not know of the concealed fact;
3. That [name of defendant] intended to deceive [name of plaintiff] by concealing the fact;
4. That [name of plaintiff] reasonably relied on [name of defendant]’s deception;
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s concealment was a substantial factor in causing [name of plaintiff]’s harm.
Working backward, an attorney (or anyone filing a lawsuit alleging fraud) would have to include an allegation of each of these claims in his or her complaint or risk having the complaint dismissed for failure to state a cause of action.

The reason why I mention this particular cause of action is that the concept of perpetrating a fraud lies at the heart of the concept of plagiarism. Basically, plagiarism is when a person appropriates ideas and content created by another person and claims it as his or her own work with disclosing the source of the material appropriated. However, any cause of action alleging fraud for plagiarism would lie with the recipient of the work, not the originator.

Notwithstanding the existence of a potential fraud claim, plainly stated, in the legal world, there is no separate cause of action for plagiarism. Any such claim made in court must be stated in terms of some type of fraud. Further, plagiarism is usually alleged by the recipient of the plagiarized work. For example, the common context is in a school or classroom setting where the student submits a paper with material copied from another as his or her own work. In the academic world, this is very common and dealt with, sometimes, very severely, resulting in the student's failure of the assignment, or in some cases, expulsion from the school, college or university.

In the context of the genealogist whose family tree is appropriated by a relative, this third-party involvement, i.e. the academic institution, is missing. Could the school maintain a cause of action against the student for plagiarism? Realize that in this instance, the creator of the plagiarized work is very, very likely totally ignorant of the unattributed copy. In fact, the copied work could even be freely available and in the public domain. In nearly all instances of plagiarism, ownership of the original, copied material is not the issue. Failure to attribute the origin of the copied material, usually in an academic setting, is the issue. Any legal involvement arising from a claim of plagiarism is commonly raised by the student challenging the actions of the academic institution. Again, the originator (writer, creator etc.) of the plagiarized work is not involved.

Could the genealogist whose work was "plagiarized" maintain a cause of action? I have a difficult time imagining such a situation because, if you examine the cause of action for fraud, you will see that the action is based on a claim by the recipient of the plagiarized (or allegedly fraudulent) work, not the originator. If I looked at a family tree online that had been copied without authorization from its originator, would I have a cause of action for plagiarism? You might like to argue that you did, but no attorney in their right mind would take such a case absent some substantial proof of damage.

Other than hurt feelings and indignation, how is the originator of a family tree, whose work is plagiarized damaged?

Now, this is where copyright comes in. Historically, recognizing that the originators of a work had no cause of action for unauthorized copies made of their work, lawmakers made up such a claim and called it copyright protection and identified the created work as "intellectual property." The statutes conferred a type of ownership on the originators (authors, composers etc.) of a work (books, articles, compositions etc.) and gave the originators a "cause of action." The catch here was that the cause of action was severely limited by the exact words and the interpretation of those words in a court of law.

We have now come full circle. if I want to maintain an action in a court for copyright infringement, I must allege a cause of action based on the copyright statutes of the jurisdiction where I bring the action.  For example, in the United States, I must allege all of the elements of a copyright infringement case as established by the applicable statutes and existing court rulings in the U.S. Federal Court system. In the legal context, if the originator of a work, such as a family tree, thinks that the work has been plagiarized, they are really thinking in terms of ownership of the work and are, almost always, really subject to a copyright infringement claim. Plagiarism does not apply.

Can I maintain a claim for copyright infringement if someone copies my online family tree without attribution? The answer, as far as the current case law is concerned, is maybe. But my opinion is no because there is no U.S. Federal Court case that has recognized an online family tree as a "protected work" under the existing statutes. The copyright issue arises when the work becomes "original" as defined by the statutes. For example, when the originator adds his or her own original work in the form of notes, comments, stories etc. to the family tree. If you would like to pursue this issue and argue with me about the application of the copyright law, I would be glad to respond, Please see Copyright and Genealogy from the Association of Professional Genealogists as a starting point.

The extent to which any work is covered by copyright law is determined by the amount of original content created by the originator of the work. Attorneys sometimes learn by hard experience how to judge whether a claim by a client constitutes a viable cause of action.

If you believe you have a claim for plagiarism and/or infringement of copyright, please seek competent legal advice from an attorney who practicing law in the area of intellectual property. This is a narrow area of the law (i.e. may be considered to be a specialty) and many attorneys in general practice know little or nothing about intellectual property. Please remember, that I am no longer a licensed attorney and I am completely retired from the practice. This post is my own personal opinion and nothing in this post should be construed to constitute legal advice on any particular set of facts or cause of action.

Monday, November 24, 2014

Using Ancestry.com Family Trees by Cathy Magleby



This is yet another in the series of Brigham Young University Family History Library videos from classes. This one is from Cathy Magleby, a local genealogist. As I regularly point out, these videos are on the BYU Family History Library Channel on YouTube.com. There will be no regular Sunday classes in December, but you can check the BYU Family History Library Facebook page for information about classes that may be scheduled during the week in December.

The FamilySearch Research Wiki -- Class at BYU Family History Library



Here is another in a series of classroom videos from the Brigham Young University Family History Library. The class schedule is usually posted on the BYU FHL Facebook page. I understand that there may be no Sunday afternoon classes in December. But I may be teaching during the week so check for a posting.

Comments on the Status of Genealogy

As I looked out my window at the first real snowfall of the season, I began to reflect on where we are in genealogy today. Yesterday, I taught two classes, one on searching on Ancestry.com and another on the FamilySearch.org partnership programs. Despite the misgivings of more experienced genealogists, I find that those just beginning to have an interest in discovering their family's history are truly overwhelmed by the technology. This does not just include older genealogists who did not grow up with computers, but also younger, very educated and technologically adept people who have yet to take advantage of the flood of available information. One comment was indicative. A lady, who was much younger than I am, commented that she had started to use MyHertiage.com and was baffled, in a sense, by all the suggested tree matches and source hints. After my brief explanation of how and why the program operates, she was determined to go home and get busy looking at the sources she had been ignoring.

I think one thing the technology is doing, is putting us in position where we are metaphorically standing in the stream of a firehose of information and changes. This situation has many would-be genealogists stumped about where and how to begin. Once they begin to use the online programs, especially FamilySearch.org, they are confronted with a huge number of options. If you are swimming the stream of technology, you can't imagine how intimidating it is to people standing on the shore watching you speed by with the current.

For example, I just opened my Feedly.com list of watched websites. Since I cleared the list late last night, I only have a very short list of 22 feeds to review. Here is just a random sample of the posts' headlines today in no particular order:


Now, how do I tell a budding genealogist that they must spend virtually their full time just reviewing each day's offerings from the genealogy community? On a regularly busy news day, I can have well over 100 and sometimes over 200 posts to review. To keep sane, I have to invoke my personal filter that filters out almost everything and gets very picky about what I will spend my time on reviewing more in depth.

One interesting phenomena is the trend away from large conferences and the movement towards smaller, very local events. FamilySearch.org is reporting having sponsored over 1000 of the local conferences around the world. At the same time, the very large genealogy conferences are still promoting attendance in an attempt to become even larger. This next year, #RootsTech 2015 is promoting the following:
RootsTech 2015 will be held on February 12–14, 2015, in partnership with the Federation of Genealogical Societies (FGS), offering two great conferences in one location at the Salt Palace Convention Center in Salt Lake City, Utah. Upgrade your RootsTech three-day pass to include the full four-day FGS program (Wed. through Sat.) for a small additional fee.
Both of the simultaneous conferences will have an extensive list of presenters and classes. Some of the presentations at RootsTech will then be recorded and used as the seed presentations at hundreds of more local conferences. Even living here in Provo, Utah, only a matter of about an hour's drive from downtown Salt Lake City, I find that very, very few people are even aware of the existence of the #RootsTech conference, even those who are members of the sponsoring organization, The Church of Jesus Christ of Latter-day Saints. This is case despite announcements of big-name entertainment stars' participation in the conference.

Another interesting new trend is the genealogical cruise ship experience. My wife and I took our first cruise this past summer. We went to Alaska on the Inside Passage. It was an interesting and very impressive trip which we throughly enjoyed. Would we do it again? Would we go on another cruise to a different location? Would we consider going with a bunch of genealogists for the ostensible purpose of sitting in classes while on the cruise ship? Nevertheless, there is an almost constant stream of announcements of future cruises. One thing I can say about our cruise is that we didn't get much sleep and we ate way too much food. Given the time it took to just live on the ship, I have a hard time imagining getting a lot of genealogy done. For example, most of the dinners took from an hour or so to well over two hours. We are definitely not used to spending two hours just to eat dinner. I am sure we are in the minority judging by the number and popularity of these cruises.

Fortunately, in all this rush hour traffic of genealogical events and news, we still try to focus on very local and very personal genealogical projects. I am currently in the middle of a very local oral history project and a record transcription project for a local university (not BYU). I am certainly still and always will be very busy. Fortunately, I can still sit and write and look out the window at the new coating of snow on the now leafless forest hillside next to our house. It reminds me that my world does not always have to run at high speed.

Sunday, November 23, 2014

Comments on Becoming an Excellent Genealogist -- Chapter Eleven

This is an ongoing series of chapter by chapter comments on the book,

Meyerink, Kory L., Tristan Tolman, and Linda K. Gulbrandsen. Becoming an Excellent Genealogist: Essays on Professional Research Skills. [Salt Lake City, Utah]: ICAPGen, 2012.

I am now commenting on Chapter Eleven: An Introduction to Medieval Research by John M. Kitzmiller, II, AG, FSA(Scot), FSH(Eng).

When I was in law school at Arizona State University, one of the most influential classes I took was in Property Law. One of the text books was

Moynihan, Cornelius J. Introduction to the Law of Real Property: An Historical Background of the Common Law of Real Property and Its Modern Application. St. Paul, Minn: West Pub. Co, 1962.

Of all the law books I used in school, this is the only one I still refer to. Reading the chapter by John Kitzmiller immediately made me think of this book. The brief introduction to Medieval Research in this chapter belies the riches in the Moynihan book. This class had all of the students, including me, running to Black's Law Dictionary (Garner, Bryan A., and Henry Campbell Black. Black's Law Dictionary. St. Paul, Minn: West Group, 1999). almost after every class.

One key to doing research in Medieval times is understanding land tenures. As pointed out by Kitzmiller, the Middle Ages are usually divided into three periods; the Early Middle Ages from the Fifth to the Tenth Centuries, the High Middle Ages from the Eleventh to the Thirteenth Centuries, and the Late Middle Ages up to the Fifteenth Century. You might remember that the year designations are 100 years behind the Century designations, so the time period is from the 400s to the 1400s, just about a thousand years. The records and forms of land ownership and use changed over that extended period of time.

Quoting from Moynihan:
A thorough understanding of the modern land law is impossible without a knowledge of it historical background. 
Moynihan further quotes a statement made by Mr. Justice Holmes, who said, "Upon this point a page of history is worth a volume of logic. See New York Trust Co. v. Elsner, 256 U.S. 345 at 349, 41 S.Ct. 506 at 507, 65 L.Ed. 963 at 983 (1921). These statements not only apply to lawyers and their litigating parties, but equally apply to those using land law and the records created by the law in any given time period for genealogical research.

I find it ludicrous that so many genealogists copy books and records that go back through this Midieval time period without a semblance of understanding of either the history or the evolving legal landscape of this extensive period. As Kitzmiller points out that research back through these time periods can only be done with "great caution." As he further states:
Be careful in using early, published genealogies and histories, which have a tendency to be inaccurate when it come to a connection to the landed gentry.
I would strongly second that opinion. As I have written several times before, pedigrees showing royalty are usually just copied and as indicated, usually from a very unreliable source. I certainly admire the person who can do original research in the Middle Ages, but I would hope that the rest of us would recognize the difficulty and not be so quick to extend our pedigrees through mere copying.

Here is a very short test to see if you are ready to do research in the Middle Ages. See if you can recognize and define each of the following terms without looking them up in a dictionary or online:
  • baronial estates or honours
  • servitia debita
  • sub-tenures
  • tenants in chief or tenant in capite 
  • tenure by knight service
  • Sergeanty
  • Frankalmoin
  • Free and common socage

I hate to tell you this, but these are really common terms and really do matter for an understanding of the Middle Ages for genealogical research. Kitzmiller gives a very abbreviated discussion of most of these terms in his short article.

As usual, the articles in this excellent book are a jumping off place for a great deal of discussion and further investigation. Here is a summary of the articles so far:

Saturday, November 22, 2014

Ancestry.com reports on growth of online family history research

In a press release dated 19 November 2014 from Ancestry.com in Provo, Utah, entitled, "Online Family History Research in United States Grows by 14 Times in Past Decade," the company stated:
Over the past decade, online family history research has grown in the United States by 14 times, with two-thirds (63%) of respondents in a recent study reporting that family history has become more important than ever. They also say that this growth is motivated by a belief that knowing more about the past is a key part of understanding who we are. 
Announced today by Ancestry.com, the world's largest online family history resource, the new findings are part of the first chapter in its Global Family History Report, a multi-country study that examined trends in the family—both past and present—across six developed countries: the U.S., UK, Canada, Australia, Germany and Sweden.
This is certainly good news to genealogists, but what does this really mean? The statement refers to a "Global Family History Report." According to Diane Haddad, on the GenealogyInsider blog, this is apparently a study done by the Future Foundation on behalf of Ancestry.com. Diane states, in part:
The study by the Future Foundation on behalf of Ancestry.com examined trends in the family—both past and present—across six developed countries: the United States, UK, Canada, Australia, Germany and Sweden.

Overall, it indicates that generations are growing closer and families are increasingly interested in their history. Other findings include:
  • The number of grandchildren with a close relationship with a grandparent has risen from 60 percent in the 1950s to 1960s, to 78 percent today. Ancestry.com family historian Michelle Ercanbreck attributes this to advances in technology and medicine: “As grand- and great-grandparents live longer and stay connected with social media, there are now unprecedented opportunities to engage with younger generations and pass on family stories.” 
  • Nearly three-quarters (72 percent) of respondents reported feeling closer to older relatives, with half of older relatives saying they had drawn closer to young relatives as a result of learning more about their family.
  • Younger people (55 percent overall) are among those inspired most to learn more about their family history by talking with older family members.
  • The average family history for US respondents stretches back 184 years, compared to 149 years a generation ago.
  • Among Americans who’ve gone beyond talking to family to research their family history, three of the most commonly used resources are photographs (81 percent); birth, marriage and death records (66 percent); and letters (45 percent).
 I am always skeptical of vaguely cited statistics, particularly those that try to prove the "popularity" of genealogy and/or family history. There is always a tendency to translate a vague interest in families into support for the popularity of doing genealogical research.

The problem here is separating the overall growth and impact of the Internet on the world's population from a specific interest in genealogy or family history. One example is the Internet Growth Statistics from the Internet World Stats website. From the statistics cited on that website, in February of 2004 (ten years or a decade ago) there were approximately 745 million Internet users worldwide. By March of 2014, the estimated number of users had risen to 2,937,000.000 users. In other words, the percentage of Internet users in the world population rose from 11.5% in 2004 to 40.9% in 2014. Now the problem is this; how do you compare a statistic that claims a "14 times" growth with the percentage increase in overall Internet usage? Finding exact statistics from Ancestry.com about the number of users and growth is pretty difficult.

Isn't it true that people feel more connected today than they did ten years ago? I can now talk instantly or nearly instantly to my children around the country (an around the world if need be) in a variety of ways, all of which are essentially free results of Internet connections. Doesn't this alone support the cited rise in interest?

I am certain that involvement of people in online programs such as Ancestry.com, MyHeritage.com, FamilySearch.org and all the other online genealogy programs, has increased awareness and interest in families. We do have current numbers of users from MyHeritage.com. They have a counter on their website showing the number of members of the program. Today, the counter showed 73,293,269 members of MyHeritage.com worldwide. I have observed that in the past few weeks, that number has been increasing by about 100,000 new members a week! Simple math shows that about 2.5% of the world's estimated Internet users are on MyHeritage.com.

All in all, these statistics are interesting and perhaps even encouraging. But they would be more interesting if they could be compared to some actual historical numbers.