Central Pacific Railroad Photographic History Museum

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Click on any image or link to ACCEPT the USER AGREEMENT.
Click any image or link to accept the User Agreement.

© 2014 CPRR.org. Use of this Web site constitutes acceptance of the User Agreement which permits personal use web viewing only; no copying; arbitration; no warranty.
Rants

"It is not the critic who counts, not the man who points out how the strong man stumbled, or where the doer of deeds could have done better. The credit belongs to the man who is actually in the arena; whose face is marred by the dust and sweat and blood; who strives valiantly; who errs and comes short again and again; who knows the great enthusiasms, the great devotions and spends himself in a worthy cause; who at the best, knows in the end the triumph of high achievement, and who, at worst, if he fails, at least fails while daring greatly; so that his place shall never be with those cold and timid souls who know neither victory or defeat." —Theodore Roosevelt, from "Citizenship in a Republic," Speech at the Sorbonne, Paris, April 23, 1910.

Courtesy Animation Factory.
We are delighted that with more than a half million visitors and so many wonderful awards and kudos, we have received less than a dozen rants,** but since a few issues seem to confuse or irritate more than one person, we provide this resource to respond, and to address some misconceptions. We're sorry that you are unhappy! (We have also added pop-up FAQ's to the User Agreement that respond to some of the more frequent misconceptions.)
**If you're not a railroad or history buff and are outraged because you believed what you read in a blog, sorry that you have likely been misled by a law student's hidden agenda, but please read our response.

If we can be of help, please just ask us!

Did you miss our faster loading pages for small computer screens and slow internet connections and our explanations of technical issues and our website design decisions?

"Quote me as saying I was mis-quoted." —Groucho Marx

No we're not getting rich charging 4th graders to do their homework!  You or your child's teacher may be getting a salary for teaching, but we're unpaid volunteers (following in the tradition of other retired educators) providing a free educational resource.  The use fees that are charged for commercial publication use help us to pay for the costs of providing this on-line museum website.  We've never charged a student to use these historic pictures, but permission is required as it is legally necessary.  The legalese is mostly about protecting our donors and their collections, not about charging students or hobbyists!

May 29, 2006

Re: I Love The Rants Section On Your Web Site

Just a quick note to say that the rants section of your web site has made me heartily laugh today. My goodness, do people think that web sites, especially sites with huge photo collections on them are free?

I might make a suggestion that you add a remark to people on your site before they write a "rant."

Something like: "Please take a Prozac before you write."

—Warren Crandall

 

If you want permission to use a picture for no-fee personal use or some other special request, all you need to do is to ask us.  (The CPRR.org website has thousands of images, and our ability to give permission varies from image to image, so you'll need to be specific in your request.  Please don't forget to tell us which picture you want and exactly where you found it on the website.)  Most of the permissions legalese is about licensing terms and use fees, etc. for commercial publication.

Please don't confuse the need to obtain permission in some circumstances (just a formality) with denial of permission or mistakenly conclude that we always charge for permission - We don't! By visiting this website you are accepting a free "gift" from our donors — please don't be ungrateful. An incredibly small number of people get very angry with us (see below) because they misunderstand our policies and incorrectly guess our motivation. If you think that public and private schools, colleges, universities, museums, bookstores, and libraries all of which charge billions of dollars a year for education are a good thing, then you certainly should not get mad at us for being much more generous by providing at our own expense a free educational resource! Yes, contrary to your misinterpretation of our User Agreement, we generally do not charge you unless you are making money by using our work. But you have no entitlement to the work of others, so there would be nothing improper if we did want to charge you for personal educational use, which we don't. (That's an accurate statement of our actions to date, not a contractual promise for the future and is subject to change as we try to figure how best to fund the cost of creating and maintaining this museum.) We're sorry if you find the need to protect our donors in a "legally correct" way to be a nuisance — well so do we! So, if you know of a way to comply with recent court rulings which is better than what you find annoying on our website, please tell us how so that we can fix this for everyone.

Please don't spoil it for everyone and jeopardize
the CPRR Museum website's continued existence.
Donors won't allow us to continue showing their
valuable pictures online if they are being stolen.

GIVE-US-A-BREAK: Early on, a few things were disrupting our project. Frequent and wholesale pirating of images was getting our donors angry and wasting lots of time, orders for pictures were being cancelled after we completed them about half the time, squandering our scarce resources, and people were invading the privacy of our donors and placing telephone calls to the home of one of our donors that were disturbing and awakening a sick member of their household. So we made some necessary changes, added some embelishments to the User Agreement that we find humorous [your mileage may vary], and as a result all of these problems almost completely went away. People continued to enjoy our website in large numbers, and tell us so, but a few visitors who misunderstood the fixes, missed the humor, and have not had the courtesy to contact us for clarification have engaged in some rather bizzare and wildly incorrect speculations about us and the consequences of our policies. In fact the user agreement and copy protection have worked so well in deterring problematic behavior that we have never had to take legal action to enforce its provisions, nor have we ever had to charge anyone for a cancelled order, for an e-mail, or for a telephone call. Never! So do us a favor — enjoy looking at the pictures, and skip the "outrage" about non-events.

Don't bang on the glass – it disturbs the animals.

Another non-event is depriving people of the use of pictures. This just hasn't been a problem. We have a "frequent homework pictures" page that give kids instant access and permission to use pictures for their school work. (The pictures there are the ones that kids actually asked us for.) We offer to add more pictures to that page upon request, but after five years and three-quarters of a million visitors, only one school kid has asked us for any significant number of additional pictures which were promptly supplied. Requests from hobbyists have been quite infrequent. We wondered if slow downloads were a problem or if people wanted to have the whole website on their computer — so we asked people to let us know if they needed a copy of the entire website on CD-ROM and if so what it should cost — and after asking for four years and half a million visitors later the answer was that not a single person expressed any actual interest in having this additional access. We dropped this offer when the website got too large to fit on a compact disk. Since we haven't refused anyone the use of even one of our pictures, the outrage expressed by ideologues – who are not themselves interested in the railroad – about rights and access issues for other people is just not reasonable.

"If you can't imitate us, don't copy us." —Yogi Berra

We are extremely sympathetic to polite requests, while being utterly unsympathetic to rude demands from people who on ideological grounds (having failed to grasp the principal lesson of twentieth century history) feel entitled to the work of others. (While it would be a great convenience for us, we can't simply give blanket permission for personal use without visitors first asking us for permission both because we don't know how to do this in a legally correct way that preserves commercial/publication rights, and because we have not ourselves obtained authority from all of the more than 250 donors who permit us to show their images and other content on our website sufficient to also allow us to give such permissions to others. Consequently, rights must be researched, and permissions must be done on a case by case basis – as is commonplace – even when we waive use fees, as we generally do for personal use.)

"There are only two truly infinite things, the universe and stupidity. And I am unsure about the universe." —Albert Einstein

We read, take seriously, and respond to all our e-mail which can be very time consuming, so it greatly offends and upsets us to be verbally attacked by the ungrateful 0.002% minority of website visitors who we have found misunderstand the legal requirements and our motives and feel entitled to the fruits of other peoples' efforts, so are unwilling to politely request what they want; we refer such ungrateful minority to the reply given in the case of Arkell v. Pressdram. Contrary to their unreasonable expectations that everything should be free, the signs that you see in stores saying "we prosecute shoplifters" are equally applicable on-line.

"No good deed goes unpunished." Clare Boothe Luce

If you want to get us really upset and run up a large bill in the process, request images for publication use, and after extensive high resolution custom scanning and restoration – as soon as your order is ready – send an e-mail like the following real example:

> annoying bug, from anonymous 'janneman02'Our client has decided to go with a
> different design direction so we will not need this image afterall.
> Many thanks for all your assistance with my queries, etc. I hope to
> have the opportunity to use the CPRR Museum in the future.

"Just because you like my stuff doesn't mean I owe you anything" —Bob Dylan

Right Click:  If you dislike the "no copying" message that pops up when you right click, please know that the blame should go to the people who by repeatedly stealing and republishing our website forced us to add copy protection, as explained in the technical notes.  We reluctantly added copy protection in the least annoying way we know how and it has worked fairly well.  We hope that if you don't try to download pictures you won't even notice that this site has copy protection, and if you do want to download pictures that you'll first ask us for permission.  If you know of a better or less obtrusive way to inhibit casual copying of pictures and to alert people that copying without permission is not allowed, please tell us how.

If you don't want to buy a license, don't e-mail us a permissions request — it's that simple.  The User Agreement warnings that informal license requests, including those in the form of a question, will be acted upon as firm orders once we receive sufficient information to fill the order and that there is a charge for abandoned applications are necessary because multiple license applicants who later changed their minds have attempted to rely upon their failure to observe the requirements when initially submitting an application for permission as grounds for refusing the orders they placed. [Please don't think badly of us — we doubt that you would continue to put up for long with half your efforts being wasted, either!]

No, we didn't send you virus infected e-mail!  The Klez and Mydoom worms, for example, do send infected e-mails, but fake ("spoof") the return address.  So the virus infected e-mail with our return address didn't come from us!  Our e-mail is sent from a Macintosh that can't be infected by Windows only worms, and we use anti-virus software.

Sorry about plastering catchy legal prose and colorful graphics like the following at the top of multiple pages on the CPRR.org website:

Click on any image or link to ACCEPT the USER AGREEMENT.
Click any image or link to accept the User Agreement.

© 1999-2008 CPRR.org *Permission required for any use other than personal educational web viewing; no warranty Click on any link or image to indicate "I ACCEPT" the USER Agreement.

Copyright © 1999-2008 CPRR.org – Permission to browse this copyrighted website requires acceptance of the User Agreement.
© 2007 CPRR.org – By visiting this site you agree to the terms of the CPRR.org User Agreement. Permission to browse this website is contingent on acceptance of the User Agreement.
2007 CPRR.org. Use of this Web site constitutes acceptance of the User Agreement which permits personal use web viewing only; no copying; arbitration; no warranty.
© 2007 CPRR.org. By clicking any image or link on this website, I agree to be bound by this CPRR.org User Agreement.
© 2007 CPRR.org. Reproduction in whole or in part without permission is prohibited. By clicking any image or link, I acknowledge that I have read and agree to the CPRR.org User Agreement.
All use of this website and any related activity, including browsing and sending us messages, is governed by the CPRR.org User Agreement – so you should read the terms and conditions carefully because you are bound by them.
Copyright © 1999-2008, CPRR.org. Your use of this website or any of its content or software indicates your agreement to be bound by the terms of the User Agreement.

These extra "don't say we didn't warn you" notices are necessary because courts say that web surfers haven't noticed the legal notices and links to webpages with contract terms and conditions found at the bottom of just about every webpage on the Internet.


Purposes of the Website and its User Agreement


It is said that you should never watch legislation or sausage being made. If the railroad had been designed by lawyers, it might well have looked like the following picture (i.e., you can't get there from here):

Joke: misaligned track (never happpened)

Fortunately, that never happened, because the folks that designed the Central Pacific Railroad were engineers who knew exactly what they were doing (based on scientific methods that test each new idea to make sure that it works as predicted), not lawyers, judges, and politicians who force their untested ideas on an unsuspecting public (often with no awareness or in wilfull disregard of the unintended consequences) and aren't held accountable for the resulting unworkable mess.
[Note: The above fantasy image was inspired by several inquiries such as the following: "I'm looking for a spoof picture that I saw 30 years ago.  It was a take off on the 'Final Spike' picture, as it had railroad workers, trains facing each other, men in top hats,  but in the middle were the two sets of tracks, meeting each other in an offset fashion as if they started 1776 miles apart 'only' to meet off by 5 feet, and a caption 'Oh S#!@' or similar. Do you know where I can find this image?" – Please let us know if you have a copy of the original spoof, or know the source.]


Sorry about all the copyright warnings. A simple copyright notice should suffice, but unfortunately some recent court cases have instead made this all ridiculously complicated when displaying historic material. A real nuisance for both us and visitors. The legal eagles have created such a mess, that our User Agreement was morphed into a functional parody intended to educate about intellectual property issues and to draw attention to this absurdity. (Much of the language is drawn from other websites' user agreements or published judicial opinions.) Our functional parody is apparently sufficiently well done that it has dawned on very few of the lawyers that have looked at the User Agreement that it is so much more than just a real contract. The moving eyeballs, links to lawyer jokes and Hollywood movies, loony environmental warnings, etc. are a tip-off. Not that we were all that subtle – after all, the User Agreement does contain an explicit warning that "all this legalese is completely ridiculous"!


Sorry about the laughably bad machine translations into languages other than English. We use a free web based service, AltaVisa/Babelfish, that is state-of-the-art, but still no match for human translation despite more than 40 years of research. (We first saw machine translation demonstrated by IBM at the 1964 New York, World's Fair in Flushing Meadow.) All the pages except our stored translated welcome page are machine translated on demand at the time that a link is clicked. Please feel free to volunteer to do a correct translation.


Also see:

Response to Review by Susan Hamburger.

Rant about "The Central Pacific Railroad and the Legend of Cape Horn."


"It is by the goodness of God that in our country we have those three unspeakably precious things:
freedom of speech, freedom of conscience, and the prudence never to practice either of them."
Mark Twain


However, if you would like to be constructive and politely write to us to tell us how we can improve this website, advising us very specifically what we should change and how, we would be delighted to hear from you.  But please don't spoil our day and embarrass yourself by being rude, hostile, destructive, illiterate, uninformed, and unhelpful.  If you wouldn't say it to us in person, don't send it by e-mail!  If you don't know how to fix it, please think about the issue for a while.

We definitely want to hear from you if you spot an error on our website! If you find an error and fail to report it to us so that it can be corrected, then the misteak becomes your fault.


Dear Sir or Madam,

Our deepest apologies.

We seem to have created the impression that we are obliged to respond to any and all correspondence, no matter how insulting or rude it may be. We sincerely regret any inconvenience this may have caused you.

We are not.

Regards.

[Courtesy Ctein]


"There is a very fine line between 'hobby' and 'mental illness.' " —Dave Barry

"I can calculate the movement of the stars, but not the madness of men." Sir Isaac Newton

"Before you criticize someone, you should walk a mile in their shoes.
That way, when you criticize them, you're a mile way and you have their shoes." —Anon.


Rant>  Get rid of the lawyers.  Your legal statement is ridiculous.

Answer: We agree with your sentiments.  If you know how to do this better, please let us know the specifics.  We wish that a website with historic photographs could be just like a modern book and that a simple one-line copyright notice would suffice.


Rant> Ranee Soundara wrote: your whole site is bull[expletive deleted]... you have 5 pictures of Chinese immigrants.. actually... just immigrants in general... building the railroad... everyone knows this railroad was built on the back of immigrants.... stupid site.. false facts... fake content.. u people need to get informed... thanks
p.s. dont try to cover up facts that have already been exposed.. ur efforts are annoyingly STUPID

Answer: Thanks for taking the time to write. Don't understand – please be specific. What "false facts"? What "fake content"? What has "been exposed"? Where did you obtain the correct information? Please send the corrections.
[SECOND REQUEST] We again request that you explain your rant, as we have no idea what error you think exists on our page.
[THIRD REQUEST] You are the first and only person after almost half a million visitors who thinks that we "need to get informed" about the Chinese railroad workers, so if you don't inform us and help us fix whatever it is that you find objectionable, we have no way to identify or fix the problems that concern you. Please be constructive and help fix the webpage, if it needs fixing. We are distressed that we have not received an answer to our previous e-mails. Since you took the time to write to us about your concerns, it would be appropriate for you to now explain. You are clearly passionate about some perceived errors, but we have no idea what problem you believe exists about the content of our website. We have done the best we know how to have historically accurate information on-line. We are pleased to correct any errors and have given you multiple opportunities to tell us what you believe needs to be fixed. By refusing to tell us what is wrong, any errors that remain on our website that you know about now become your fault. What "false facts... fake content" are you upset about? – What is the truth? – Where did you obtain that correct information? Please send the correct "facts" and "content" to allow us to make any needed corrections. We don't have five random pictures of "just immigrants." So far as we know, we have every picture ever taken of the Chinese workers who built the Central Pacific Railroad. What is your objection? Do you know of any other pictures? You say "everyone knows this railroad was built on the back of immigrants," but lots of people have no idea that 9,000 Chinese workers built the greatest engineering project of the 19th century by hand – an amazing contribution to building America. We don't understand your words "on the backs of immigrants" – the Chinese workers each individually made the decision to take the railroad jobs and were paid in gold – why is that bad? Building a railroad across the Sierra Nevada mountains by hand was incredibly hard, but why do you believe that the 19th railroad workers were wrong to take the jobs that they wanted? (Would you have prevented them from working where they wanted to work? Why? How would the Chinese in California been better off without these jobs?) Who would you have preferred to have taken these jobs? –There wasn't anybody else except the Chinese immigrants in California who were present in sufficient numbers at the time that the railroad could find who were willing to do the work. Please explain. We don't understand what you mean when you write "cover up facts that have already been exposed" – what facts? – what has been exposed? For what reason do you object to our "whole site" – we have thousands of pages, the vast majority of which contain material written or photographed in the 19th century. Why are you upset with what was written and photographed more than a hundred and twenty years ago? Please explain – what would you change? We look forward to hearing back from you with the specifics. [again ... no response]


Rantwhy the [expletive deleted] would you make a DISCUSSION group about this [expletive deleted], its not important since it IS OVER!! cut youre losses
— Posted by Anonymous to CPRR Discussion Group

Rant>i HAD ONLY WANTED TO PUT A PICTURE ON MY DESK. i HAPPEN TO THINK THIS IS
> REDICULOUS AND THAT IF YOU WANT TO PROTECT YOUR PRECIOUS TRAIN PICTURES SO
> INTENTLY MAYBE THE INTERNET IS NOT THE RIGHT PLACE FOR THEM. WHAT EXACTLY IS
> SOMEONE GOING TO DO MAKE A MILLION DOLLARS OFF OF THEM?!?!?!?!? IF SO I AM
> SURE YOU HAVE ALREADY UNDERTAKEN THAT PROCESS AND SHAME ON YOU. I BELIEVE
> YOUR POLICY TO BE ARROGANT AND HAS NO REAL LEG TO STAND ON. I ENCOURAGE A
> RESPONSE IN FACT I WOULD REALLY LIKE A REAL EXPLAINATION AS TO WHY YOU HAVE
> SUCH A LEGALEZE APPROACH TOWARD YOUR JPEG OR GIF OR WHATEVER DIGITAL IMAGES.
> DONT RESPOND WITH LEGAL JARGON, POLITE POLITICIAN LIKE RESPONSE. BE REAL AND
> TO THE POINT EVEN IF IT IS JUST HEY BUDDY THESE ARE THE RULES IFYOU DONT
> LIKE EM SHOVE OFF.

Answer: We also think that all the legalese is rather ridiculous (and say so on the website), but unfortunately, we didn't invent the legal rules and are stuck with trying to deal with them as we find them to be, as best we can.  We get overwhelmingly positive feedback telling us how great the CPRR Museum website is, so the occasional e-mail such as yours comes as an unpleasant surprise.  We find it very strange that people have ideas about the Internet that they would never find sensible in the physical world.  We doubt that you walk into stores and berate them that the merchandise should all be free — you well know that things in stores can't be free because it costs to produce them, distribute them, and run the store, etc.  You also don't expect to be able to keep the books found at the library (which unlike our museum is subsidized by taxes) nor do you get irate when you realize that you can only look at the paintings in museums, but not pry them off the walls, or shoplift copies from the museum store.

We give stuff away free for personal use all the time.  If you wanted something from us, why didn't it occur to you to ask us politely?

As far as why we are doing this, the explanation is given on the website in several places, for example at the very top of the User Agreement.  Simply put, donors do not appreciate having their generosity of making valuable collections available for free online viewing repaid by having years of work ripped off, and the costs of having the website have to be paid by someone.

The reason that we felt forced to add the copy protection is explained in the technical notes.

Also, we do not wish to destroy the market for these historic images by giving them all away without charge, thereby depriving all other museums and libraries of income needed to operate and to preserve their image collections.

If you think you know how to do this better, instead of ranting, how about telling us how we should pay the bills if we give away everything.  Are you offering to pay all the costs? — if not, why do you think it proper for you to tell us to?  Who is helped by removing our website from the Internet as you propose? — certainly not the third of a million visitors who have enjoyed looking at these pictures for free.  If you truly believe that the internet is not the right place for precious train pictures, you are certainly free not to look at them, but why harm everyone else by insisting that it must be all free or gone?

You didn't specify what court decision, law, or legal principle you are relying for your analysis that our "policy .. has no real leg to stand on."

Time for a reality check.  How would you react if you were working at a job and someone came up to you and demanded that you work for free and said that it is "shameful" for you to be paid?  (By the way, our family's museum was created and is run by unpaid volunteers.)  We also urge you to rethink your notion that there is some "shame" in making a "million dollars."  Creating wealth by providing what people voluntarily choose to pay for is the most noble and altruistic of endeavors.  The poverty, misery, and short lifespan typical of past centuries that now characterizes places that mistakenly reject the market economy as "evil" as you advocate is what is shameful.  ...And yes the television networks, film studios, and publishing companies that we charge for using pictures from the CPRR Museum indeed make millions of dollars.

As requested in many places on this website — if you know, please tell us how to do all this better.  ...And yes the conclusion in your last sentence is exactly correct that (until you educate or persuade us otherwise) these are the rules, take it or leave it.  We're sorry if you choose to disagree but hope that you don't choose to go away mad.


"Theft is bad ... You don't want to burn in Hell." —Steve Jobs


Rant> As someone trying to help children do schoolwork using the web for research
> and as a professional web designer in the Silicon Valley, strongly suggest
> you maximize your pages for viewing on a 14"screen, which is the size,
> unfortunately, that most children in public schools view web sites on. Your
> pages are apparently maximized for larger screens than even my home 19"
> screen, so we had to scroll right to read most pages.
> Lastly, the legal page may be "legally correct", but GET A LIFE! Very few
> people on the web are insecure enough to spend so much energy and time on
> such an absolutely ridiculous document. My children and their school will NOT
> be using your site...you DID succeed in scaring them/us off....it's just
> astounding.
> If you improve your site, take off the amateur blinking eyes, make it a site
> maximized for viewing on 14" screens, PERHAPS it will then qualify as
> "scholarly." Until then, it's pretty pathetic.

Answer: Thanks for taking the time to write.  Your comments are appreciated and well taken, although we would like to explain why we strongly disagree, how you can help make the site better — and why almost all of the many visitors to the site who have contacted us disagree with your assessment.  You can read numerous independent evaluations reaching the opposite conclusion from the one you reached on our Kudos page.  For example, the author of the definitive book on the transcontinental railroad called our CPRR Museum the best railroad website on the planet.

Visitors with slow connections and small monitors are invited to click on the "Faster" links on the welcome and home pages which contain smaller pictures and largely solve the difficulties that you encountered.  This capability may not have sufficient visibility, but we have not yet found a way to do this better — most people find pop up windows obnoxious and dismiss them without reading them, so we have elected not to include a pop up window to alert visitors to this capability, which you apparently missed.  (Almost all of the text on the CPRR.org website is designed to word wrap to the width of your monitor.  If the "faster" pages do not solve the large picture/small monitor problem you encountered, please let us know and point out where the problems occur so that we can do more to fix this.)

We are delighted that our website has turned out to be useful for children doing schoolwork, but that is a happy accident as the site was originally designed as a family project with the intent of making available valuable rare primary source photographs and other content for web viewing by historians and scholars.  We have been amazed to have received hundreds of thousands of visitors — apparently we were wildly mistaken in thinking that 19th century stereographs of the Central Pacific Railroad accompanying the biography of a transcontinental railroad engineer ancestor, Lewis Metzler Clement, was a fairly obscure topic.

Our technical choices with which you disagree are (we hope) clearly explained on our FAQ's and Technical notes pages.  We decided that it was critically important that all the details in the photographs be visible and consequently sized the pictures for the increasingly common 1024 x 768 pixel display size which approximates the resolution on screen with that of the original 3 1/2 inch albumen prints.  The website is indeed optimally viewed with a high bandwidth connection and dual 1024 x 768 displays.  —  When undertaking the huge ongoing volunteer project of putting thousand of images online which we anticipated would take years to complete we felt that it would be foolish to create a photo website where you can't clearly see the pictures and which would be obsolete about the time it was finished.

You are correct that our design decisions anticipated by several years the widespread availability of fast connections and higher resolution displays, but we felt that designing for small monitors and slow connections would not have been worth the effort and expense.  We hope that the JPEG2000 standard will in the future make it possible for visitors to control the size and resolution of displayed web images, so that this trade-off will not continue to be a one size fits all decision.  But so long as we are forced to decide, we will not settle for small, fast, blurred, and ugly as most websites do.

On many web pages we provide very brief summaries of the lengthy and detailed User Agreement, attempting to make clear that the website is for personal web viewing only, permission is needed for other uses such as publishing, and that people should go away but not sue us if they don't like our free website.  Some people have the mistaken belief that if we let them view the pictures that they should thereby be entitled to take them — not understanding that the result would be no website — but you have not stated an opinion that owners of valuable rare items should not have a right to decide how their collection is used.  We're sorry that you are offended by the form of the legalese but can't tell if we disagree on substance.

The legal page is the only portion of the website that is also not much fun for us, although we have only spent a proportionate amount of time on this aspect of the site.  We would much prefer a short simple legal page that would protect us and leave no uncertainty as to its result, but don't know how to achieve this.  While telling us to "get a life" you are actually instead demanding that we spend enormous amounts of additional time and perhaps tens of thousands of dollars in speculative legal research in an attempt to shorten and simplify the User Agreement.

We do, however, strongly agree with you that the current legal page is completely ridiculous and it is indeed pathetic that the law in this area is in such a state of disarray and frequent change that so much energy, time, and deadly boring verbiage seems to be necessary in an attempt to get a "legally correct" result.

Donors who may have spent decades obtaining these images and who generously allow their extremely expensive collections to be viewed on line but who also sell publication rights would have to be complete idiots not to insist on having — to the extent that it can be achieved — a complete and legally correct User Agreement.  Nor would our family members be willing to volunteer the time and effort to create a cultural resource if they could likely be successfully sued for their good deeds.  Almost all library and museum websites have fundamentally similar policies.  Our "how you can help" page asks for help with the legal issues, but we have had no volunteers.  We were also rather shocked to find out that under a new federal law e-mail homework help for children under 13 years of age can be unlawful.

The User Agreement explicitly invites you to help us if you know how to "do this better."  By this, we are sincerely asking for actual assistance and invite you to tell us what specific provisions of the User Agreement are objectionable if you can show us how you would rewrite that legal text to better scare off thieves and litigators without putting off welcome visitors.  The animated eyeballs are an attempt to add a bit of levity, while also symbolizing both stereoscopy and vigilance in protecting our donors' collections ;-)


Rant> Merle Bobzien wrote: In doing web research ... I ran across your site. I am truly astonished at the gargantuan effort you have made to block access and the endless pages of legalese, of biblical proportions. The simple fact that you have built a "rant" page tells me that you have probably gotten more than (your stated) half-dozen irritated responses from the 500,000+ hits you've received. It's nice to see that you're keeping alive the spirit of the Gilded Age of robber barony, but don't you think you've gone a little too far over the top, trying to scare little kiddies? Lighten up, guys. By the way, I won't lift anything from your site; there are far more willing, friendly and reputable research sites on the Internet which are available for bibliographic research.

Answer: ... No, we actually haven't received more than a handful of complaints but are deeply saddened, upset, and offended by the very few people who repay our kindness in providing what almost everyone else tells us is an incredible resource by abusing our hospitality. Reputable people do lock their doors. Providing a free private educational resource at our own expense that took decades of effort to create, while charging people who make money by using our work is in no way "keeping alive the spirit of the Gilded Age of robber barony." Your ingratitude is disturbing, your notion of entitlement to other's work is wrong, and your supposition that we are "trying to scare little kiddies" is ridiculous. As we tried to explain, we didn't invent the legal requirements, but are stuck with trying to deal with them as best we know how. ... If you know how to do this better, or wish to make a donation sufficient to defray the cost of implementing the changes you want, please tell us. ... If we can be of assistance in some way with your research, why did you not just politely ask us?

...


Rant> James Day wrote:
Re: Thanks and technical/legal notes
... Easy and pleasant part first before I get down to the pieces you'll find less welcome. Thanks for satisfying my curiosity about the Donner Pass. Now the bad news and suggestions. Yes, there is a productive and helpful suggestion at the end. Really.
1. I'd already downloaded the images on the first page I saw on your site before you had a chance to show me a legal agreement. The reason is simply technical. The browser downloads the page and image before displaying it, so you have the work before you have a chance to see the contract. Then you apply Specht v Netscape and your contract doesn't apply because it wasn't presented before providing the work.
2. I used a search engine to get to your site and even if I had seen the page before it was downloaded, I wouldn't have seen your agreement or notice of it because it wasn't on the page I arrived at. Which page it was doesn't matter because of point 1, which invalidates your claim even if there was a notice.
3. Normal browsing. Normal browsing for me is visit page and right click and choose Open in New Window for every link I want to follow. Disabling that radically changes my normal browsing behavior. It's not remotely close to being unobtrusive, so you fail to achieve that objective. But see 4.
4. Since the first time I saw your copyright notice and offer of permissions terms (not suggesting any agreement for anything other than a permissions request, see point 5) was following a normal link in my normal way, I disabled your warning less than five seconds after first being shown it and would never have seen it had I attempted to download an image (assuming for the moment that your incorrect claim that I hadn't already downloaded the image when I right clicked to save an image is actually correct). No attempt at circumvention or similar, just removing an obstacle which prevented me from making normal use of my browser for web browsing.
5. Permissions. Your notice offered terms for permissions and asserted copyright. "WEB VIEWING ONLY - COPYRIGHT - DO NOT DOWNLOAD - For permissions see the CPRR.org USER AGREEMENT." That doesn't suggest anything relating to the severe restriction on fair use which your use terms impose. You're unlikely to be able to successfully argue that your term provides notice of that severe restriction of fair use. Assuming for the moment that you're able to contractually limit fair use, which is doubtful in your situation.
6. The DMCA. You write "While it may be possible to circumvent technical copy protection mechanisms, please don't do this both because ripping off the pictures isn't a nice way to repay our donors for their generosity in supporting this project, and also because doing so was recently made a serious Federal crime under the Digital Millennium Copyright Act." I'll assume that you don't know your statement about what the DMCA says is false and ridiculous. The DMCA does not make it a crime to fail to see or avoid seeing contract terms. See the DVD Copy Control Association patent infringement case for a precedent on arranging not to see and make an agreement. The DMCA applies to circumvention to technological measures _which effectively control access to a work_. Your agreement does not in any way control access to a work through a technical measure because you display the work to all comers, whether they have agreed or not. Control access means things like cable TV decoder boxes decrypting signals _before you can see the work_, not web site license agreements. Not really helpful to misrepresent the law on an educational site.
There's more but this is starting to seem like a tirade rather than constructive comment, so on to the productive suggestion.
The main problems with your approach are that it is intrusive for normal browsing and legally ineffective because you have the image before you have the notice. The solution is different javascript on each page, which looks for a license agreement seen cookie and redirects to your agreement page if it can't find the cookie. The license page can have an accept and return to your original page button which just sends the browser back one page. Drop the cookie on the legal page and you've guaranteed that people see your agreement before they see the page they wanted. As long as they have javascript on, but that's a limitation you're accepting now so you're presumably willing to accept it. Doing this in javascript still lets search engines index your pages so you don't lose that valuable advertising. Since you only need to see this once rather than every time you attempt to right click and follow a link it is less intrusive than your current approach. Do remember to use a session cookie _and_ a timed cookie. The session cookie will let people in for a browser session and is more likely to get past a cookie blocker. If there's no cookie blocker the more permanent cookie will remember the agreement for longer, facilitating return visits without repeated display of the agreement.
When it comes to your donors desire to restrict fair use, I've no solution. They simply can't do it and shouldn't try. Once you've purchased or been given a work, you're entitled to fair use. Fair use is not republication on other web sites. That's copyright infringement, not fair use. I'm sorry to hear about the copyright infringements you've suffered.
Thanks for your consideration of my comments and suggestion and whether you consider them and find them helpful or not, thanks again for satisfying my curiosity.

Answer: Thanks for taking the time to write. We're delighted that you found the CPRR.org website's content to be useful and informative, and regret that you are apparently distressed by the legalese and right click behavior. However, we find ourselves in disagreement with both your technical and legal characterizations. ...
Thanks for describing that "Normal browsing for me is visit page and right click and choose Open in New Window for every link I want to follow." We didn't encounter this when we tested our website using Windows 2000. Since we don't use Windows ourselves except very occasionally, we were not aware of this issue. Not sure if you noticed that all our off site links already exhibit this behavior just by clicking.
Your e-mail in essence seems to argue inconsistently that notice of terms and conditions that you didn't receive was presented in too obtrusive a manner. We think that you received the notice prior to prohibited downloading, not too late as you believe. Our website has thousands of pages and even if you were correct about the timing of presentation of the notice on first page that you view on our website, we don't see how this reasoning could be extended to a second or subsequent page viewed.
As we say up front, the point of the legalese is that "publication rights are not being given away" which you appear to agree with as being appropriate and proper. When you indicate that you downloaded before receiving adequate notice, we think that you are not correctly distinguishing between the normal operation of a web browser for viewing the rendered web page which is permitted and encouraged under the license whereby the content is transferred into temporary volatile or cache memory from which it is automatically erased (again, specifically licensed and permitted) versus taking or keeping a copy for other or later use for which you're asked to make an advance request. We disagree with your technical characterization that letting you look at an image or other content with a web browser is providing you with a permanent copy that you can keep and use for other purposes because notice is provided repeatedly prior to your being able to take action to obtain or keep a copy that does not automatically get deleted.
Also the physical action of non-transient downloading of an image consists of both a "click ... to accept the user agreement" (or the equivalent) action and the action of sending to our server the message "I_ACCEPT_the_User_Agreement". Consequently we disagree that you "have the image before you have the notice" if by "have" you mean anything more than being able to look at but not touch an image on the very first page of our website that you ever visit.
We have tens of thousands of notices on our website (depending on how you count them), so we do not accept that "I used a search engine [so] ... I wouldn't have seen your agreement or notice of it because it wasn't on the page I arrived at."
We believe that Specht v. Netscape, just says that you have to be be made aware of the existence of the terms and conditions in order for your subsequent actions to represent an acceptance to form a valid contract. We think that your e-mail cannot be read in any way other than to confirm that you indeed rapidly became acutely aware of the existence of these terms; else how could you be upset by both the terms and with one of the notification mechanisms (right click capture + notice). We don't see the problem with forming the contract just after the time that you first look at the transient webpage but before you complete further action that would result in your being provided with a non-transient copy, as we have no objection to your looking at the transient webpage which, after all is the whole point of having the website.
We sincerely hope that your reading of that decision (to require a visitor to be excluded from a webpage until after formal presentation of the entire text of the contract and a click to accept) is either incorrect or is ultimately rejected by legislation, as this would make the web very unpleasant to use. We have not seen many websites adopting this interpretation in practice ... and find the sites where this is implemented very annoying to use, especially as many users for valid privacy reasons reject or promptly erase cookies. Frankly, we find the court's belief that web users could possibly be unaware that there are User Agreements linked in the standard location at the bottom of each web page to be foolish, and note that this general knowledge by the public becomes increasingly commonplace over time. But we have responded by doing our best to make it impossible to fail to receive notice prior to further navigating our website or engaging in downloading actions that would exceed the permission granted. We're sorry that the measures currently in use have adversely impacted your experience, but suspect that your suggested alternative would be more disruptive to surfing, particularly for the many 4th graders attempting to view our website in conjunction with their schoolwork.
We don't understand in what way you believe that our phrase "web viewing only" doesn't correctly and fully summarize what you term "severe fair use restrictions."
We also don't understand "I disabled your warning less than five seconds ... No attempt at circumvention or similar, just removing an obstacle." How is disabling an obstacle preventing copying not circumvention?
Please explain why you believe that our ability to "contractually limit fair use ... is doubtful in your situation" while the court concludes in the DMCA infringement case that "... nor has an art student a valid constitutional claim to fair use of a painting by photographing it in a museum."
We disagree with your characterization that "your statement about what the DMCA says is false and ridiculous. The DMCA does not make it a crime to fail to see or avoid seeing contract terms." We never said that. You quoted us correctly as saying instead that "While it may be possible to circumvent technical copy protection mechanisms, please don't do this ... " A DVD will display the work to all comers who play the disk, just as our website will display to all comers who visit our website with a web browser. That isn't the issue, and this is a statutory, not a contractual matter. The issue is making an unauthorized permanent digital copy of the DVD or of our website's pictures by disabling the copy protection mechanism, be it encryption, right click capture, or otherwise which is used to control access. Whether wise or unwise as a public policy issue, the DMCA does make criminal this circumvention to enable copying behavior exactly as we state in the language that you quote. We certainly agree that it is "Not really helpful to misrepresent the law on an educational site," but do not believe that we are doing this, so please explain further if you remain convinced that we say about the DMCA is incorrect.
As a practical matter, unless we are misunderstanding your advice, your cookie alternative: (1) results in no technical means to inhibit casual copying (which seems much less secure, is more subject to misunderstanding or inadvertent violation, and removes the DMCA sanctions for violation); and, (2) provides no notice if javascript is disabled. That scenario doesn't seem particularly attractive.
We would welcome your further comments if you believe our analysis to be incorrect. Thanks, again, for your thoughtful comments and suggestions.

> James Day replied:
I'm glad that you found my initial comments useful. Technical reply first, legal corrections and comments later.
While I also generally dislike cookies, they and redirection achieve your objective less obtrusively than placing prominent notices at the start of each page and disabling the right click. With the cookie approach you can have a first visit to the site redirect to a legal page and remain there for as long as you desire before redirecting back to the original page. Write a session cookie and that "legal agreement seen" note can disable the legalese for the ret of the browsing session. Write a more permanent cookie and a teacher or student can see the notice once and not have to view it again until after your cookie expires. That's almost ideal for a teaching situation if the teacher can visit your site prior to a lesson and trip the legal warning for the students, so the students don't need to be scared off by it.
If you dislike that approach or in addition to it, you may wish to consider these options:
o Use alt (de-facto standard) and title (actual HTML standard) text on the images. The major Windows browsers will display this if the mouse hovers over the image, as it is likely to do prior to an attempt to download.
o Name your images your_legal_agreement_image_name.JPG or similar. In all clients I have experience of, the name of the file will be displayed to anyone downloading an image, displaying the need to accept legal terms only to those who try to do what you are trying to inhibit.
Each of these has the advantage of not greatly interfering with normal browsing, though the alt/title text is somewhat more intrusive than the file name approach. Of course, there's no reason why you can't add these approaches to what you're currently doing.
Legal time now.
On the DMCA and your question "How is disabling an obstacle preventing copying not circumvention?" the answer lies in the legal definition of circumvention. You can read the appropriate law. That gives the following definition: 'a technological measure "effectively controls access to a work" if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work'.
Your measure clearly falls outside that definition. Hence, circumventing it is not circumvention within the meaning of the DMCA and your attempt to invoke DMCA criminal penalties fails. In the ordinary course of the operation of your work, an end user navigates to your web page and is presented with the work. No individual authority granting access to a specific end user is involved (which is also why the DVD scheme falls outside the definition and DVD copying tools aren't illegal under the DMCA) and there is no need at all to use the technological measure to gain access to the work. Nor is any application of information, process or treatment needed beyond normal operation of a web browser.
Should that be insufficiently persuasive, please read the first few paragraphs of page 4 of the Copyright Office's summary of the DMCA and it's specific intent not to prevent copying of works, only obtaining access. "Since copying of a work may be a fair use under appropriate circumstances, section 1201 does not prohibit the act of circumventing a technological measure that prevents copying." You can read it here: http://www.copyright.gov/legislation/dmca.pdf .
So, I fail to see any reason for you to have any belief that you have any grounds to invoke the DMCA anti-circumvention provisions. You simply don't have the sort of measure that law concerns itself with.
In the area of caching there are some precedents. Those I'm aware of relate to the use in search engines, proxy servers, network switches and the like. Search engine caches retain works for months or years, Google being one example. Browser caches, like Internet Explorer, often set cache sizes in the order of 5% or 10% of a hard drive. With hard drives larger than 200 gigabytes now available and drives of 100GB available for $100, 5% of a moderate disk size would be 5,000 megabytes. That size is somewhat transient, for it will hold about six months of the browsing of an AOL Customer who is fully using the bandwidth of a 56k modem for the approximate 90 minute a day online time their members use. It's unlikely that they are actually using all of their available bandwidth, so a year or more is a closer approximation to the time such a cache size could hold a page.
However, Internet Explorer also provides another capability, to make a web page available offline. That places an effectively permanent copy of the site on a hard drive, where it can be browsed offline at leisure and retained indefinitely. As you're aware, the vast majority of computers sold today have this tool installed on them and your site undoubtedly readily fulfills such requests to deliver a copy for permanent storage on the web sites of any visitor to your site who chooses to make the request of their browser. I haven't tried, of course, because I'm refraining from agreeing to your terms by using the site after reading your agreement.
It is possible that a court will accept your argument that you haven't really delivered to end users something which objective reality says you have delivered. I think it unlikely in the case of contract law, for contract law which flies in the face of reality is clearly unsound law and the courts do attempt to avoid decisions which clearly contradict the facts. Still, you might conceivably prevail.
Other sites don't present a prior agreement because they don't need to. Copyright law already provides the protections you're seeking against unauthorized copying. You may choose to do so because your current notices appear (to me and those whose comments you have posted, at least) to be more intrusive than a single advance notice presented on first use.
I chose not to accept the legal agreement on your web site. That is, I used your site to visit a small number of pages, and became aware of your legal agreement. Once I had read the terms of the legal agreement I did not indicate acceptance by making further use of the site. As Specht v Netscape suggests, I declined to accept the agreement once I became aware of it and am not bound by it. If you believe that my memory of the terms is incorrect, kindly say why and grant me permission to revisit the agreement without accepting its terms simply for seeking that page and reading it again and I'll take another look. ...

Answer: Thanks again for your detailed and thoughtful e-mail.
We appreciate your reply, although it's clear that neither our current approach nor your suggested alternative successfully avoids being obtrusive at all times. As such, we don't see an ideal solution and believe that it is a matter of taste as to which annoyances are worse.
We find the notion of having the legal page appear prior to reaching every page as would occur when a visitor disables cookies to be rather obnoxious website behavior. Cookies are also local to each machine so would not work well in the classroom. As a practical matter, we don't believe that a classroom teacher would react kindly upon telling his/her 4th grade students to visit a webpage to discover that it is necessary for him/her to personally run around the room to every computer to engage in an extra contract acceptance/logon procedure on each machine to set up the website on each machine before the lesson can begin. Legally we believe that we are obtaining this acceptance now, but having a separate page interposed to accomplish this we feel would likely make our website not feasible for the teacher to use. To implement cookies that cannot easily be bypassed may also require server side programming which is beyond the expertise of most website designers. It doesn't seem reasonable to impose such severe technical and user interface hurdles as a prerequisite for having contractual terms of website use, so again, we sincerely hope that Specht v. Netscape does not have this result.
We think that diverting visitors to a legal page before they can even get a glimpse at content sufficient for them to decide whether the website is of interest to them would have the practical effect of turning away almost all visitors. We hope that our understanding is correct that Specht v. Netscape does not produce this terrible result.
Another very serious problem with interposing a legal page unless a cookie has been set is that this would likely prevent search engines from entering the website, or even if they could enter would cause them to index the content of the legal page rather than the actual page. A website that is not correctly indexed by search engines might as well not exist, as it would never be found by most of its potential visitors. Since we use external search engines to provide a site index, the ability to search for content within our website would be lost as well.
Substituting image title tag legal terms is problematic because the permissible length of titles is limited, and to have these constantly popping up would be very distracting, ugly, and intrusive. In any case, this use would be for disclosure only as it would not inhibit casual copying. Additionally, we use title tags for titles, and need them to be available for their intended use.
We already do name our pictures using a pathname that includes "CPRR.org ... I_ACCEPT_the_User Agreement".
Regarding the DMCA, we continue to disagree with your analysis. As one example, we believe that our technological measure effectively controls access to our image because our measure, in the ordinary course of its operation, requires both the application of information (the image path) and a process or a treatment (the steps necessary to download an image) with the authority of the copyright owner (which permission is denied by the User Agreement) to gain access to the work (the image). The terms of the User Agreement prohibit viewing or reverse engineering the page source.
The image pathname (URL) is information (a functional password, or treasure map) that enables access and without which access is not possible. Consequently, we believe that pirating an image by obtaining an image path from our page source code in violation of our User Agreement in order to bypass right click capture, for example, meets the definition of circumvention under the DMCA, and so we give a warning within the source code annotation. We also believe that making use of the stolen path name so obtained (which includes the message "I_ACCEPT_the_User Agreement") to obtain an image is impossible without first sending us the included message thereby reconfirming acceptance of our User Agreement. Since our User Agreement limits permitted use to "viewing only" we believe that many alternative variations in the procedure used to download images from our website without permission would also constitute circumvention.
We also disagree with your statement that "In the ordinary course of the operation of your work, an end user navigates to your web page and is presented with the work. No individual authority granting access to a specific end user is involved ... " To the contrary, the User Agreement states that "each access is by permission only" and beyond the first glance, that permission is granted only upon acceptance of the User Agreement, one visitor at a time.
We don't see any difficulty with the 1201 interpretation that you cite. We allow you to copy the image onto your computer screen while using technical measures to prevent your access to the file. We are puzzled by your statement that "DVD copying tools aren't illegal under the DMCA" as the U.S. Court of Appeals, 2nd Circuit, affirmed that DVD pirating software that gains unauthorized access to movies on DVD's is unlawful under the DMCA and enjoining its publication.
You comment that "In the area of caching there are some precedents." However, the applicable precedent is Kelly v. Ariba Soft Corp. which instead held that "use by an Internet 'visual search engine' of others' copyrighted images is a prima facia copyright violation." It was only because the renamed Ditto.com visual search engine used only thumbnail images in a very different way from the original use and did not economically harm the image owner that a fair use exception applied, none of which would be true if someone stole a larger image from our website to avoid licensing a copy. Our images are not indexed by visual search engines because, given the way that visual search engines display their results, after discussion with the search engine company in the above precedent case, we were not able to figure out how to include our image in search engine results without giving access that might bypass our User Agreement. Another bad legal result.
We are surprised that anyone would want to use the enormous cache sizes you mentioned as this would be so incredibly pointless and wasteful and might even slow down access. We did consider cache files and included contractual terms that explicitly permit transient copies without allowing further use. Again, we hope that you are wrong about Specht v. Netscape, as the implication of your analysis is that we would need to include metatags to prohibit caching. What could be more obtrusive than requiring the large pictures to be redownloaded every time you return to our homepage, for example, while browsing our site? Your objections regarding obtrusiveness are working at cross purposes with your objections regarding legalese, as your legal concerns are pushing us in the wrong direction, i.e., toward unacceptably degrading the website design and performance.
Making permanent copies of our web pages and images in Internet Explorer archive format is prohibited by the User Agreement unless you first ask us for permission, just as with any other copy format, but access to such archives would also involve the same issues as immediate access and in addition would violate the prohibition on any but immediate access.
We don't accept your conclusion that "objective reality says you have delivered" an image that you can keep when the only thing you have done is to display it transiently on your computer screen. The "reality" of having content that you are permitted to use is that you must have access and permission. The reality is that you have neither. Consider the analogy of a digital file as being information and property just as is the silver distribution in the emulsion of a photograph behind glass in a museum. Just because you can see a photograph behind the glass in a museum (like you can see the digital data on your computer screen), doesn't mean that you have delivery of it or can lawfully take the actions needed to access and keep it, or make a duplicate of it to keep or take home. In both cases what was delivered is light to your eyes, not the property you were allowed to view. We don't see how the technological ability to see the pattern of silver in a photograph at great distance in any fundamental way differs from looking at it up close. People don't think they can take exhibits off the walls of museums or ignore posted no photography rules. We don't see a distinction between walking through the front door of the museum under a "don't touch, no photography permitted" policy (posted next to the exhibit) and looking into the museum with a telescope from across the street, or from around the world via the Internet. We also don't think that enforcement of the museum's policy is in any way hindered because the rules were posted next to the exhibit and see no need that they be posted outside the museum's doors. The problem would arise only if the notice about the existence of the museum's no photography policy was never posted or was visible only as you exited the museum, which as your e-mail reveals is certainly not the case with our museum.
When you write "I haven't tried, of course, [to save a copy] because I'm refraining from agreeing to your terms by using the site after reading your agreement" it appears that despite your expressed concerns you actually concede both the contractual prohibition and the notice. You are correct that agreement should not be the result for "simply for seeking that page [containing the agreement] and reading it" without further action, and the agreement is explicit in that regard, stating that acceptance is indicated by "clicking (or the equivalent) on any link or image (other than to view this User Agreement web page)." But you then did not close the window and make no further use of the website and of our domain name which are the inactions required to refrain from agreeing, instead choosing to click on a link and send an e-mail, both actions signifying "I ACCEPT." In the process you made yourself one of the top ten of the half million users of the website in the amount of our resources we consequently devoted to your use of the website. Your challenging comments have been valuable to us in clarifying our thoughts, so we're delighted that you decided to express your thoughts, but you can't reject the agreement while taking the actions that constitute acceptance and which affix your electronic signature. Also, despite saying that you didn't receive notice and reject the agreement, you are able to analyze its provisions in great detail and have taken meticulous care to abide by all those provisions of the agreement. We summarize the essence of the agreement as "look but don't touch" as publication rights are not being given away, and we think that your e-mails actually reflect agreement with that.
There are many issues other than copyright that concern virtually all websites conducting e-commerce so it is not correct that "Other sites don't present a prior agreement because they don't need to." For example, the method of dispute resolution was at initial issue in Specht v. Netscape. Waiver of implied warranties is also critical. ...
There seems to be a consensus that current law is poorly crafted for protection of intellectual property in digital form, but there is widening disagreement as to how to fix this with one side wanting everything free immediately and the other wanting every bit of software and hardware locked tight forever. Both approaches seem to us to be harmful. ...
Thanks again, for your thoughts.

> James Day replied:
Not so. The redirection to the legal page would be done by script. Search engines don't run javascript so they won't be redirected away from the content to the legal page. I agree that you certainly wouldn't want to do anything to limit the accessibility to search engines.

Answer: A mandatory redirect that every visitor must see can't be implemented by client side javascript because javascript can be turned off by website visitors (unless you also want to prevent page loading if javascript is not enabled which is even more obtrusive).


"I have never known much good done by those who profess to trade for the public good." —Adam Smith, 1776.


Rant> Jim Jarvis wrote:

You Inpede the Free Movement of Ideas

Dear CPRR,
You have an impressive website. The collection and arrangements are good and well thought out.
Your use policy is offensive. We waged the cold war for the free movement of people and ideas. For the sake of the greed of lawyers, you are inhibiting the free movement of ideas. To ask people to pay for the images, many of which are already the property of the people (Library of Congress), is a travesty.
Ever learn about the renaissance and the enlightenment? Had your policies been effect, they would not have happened. That's sad...

Answer: Thanks for your kind words about the CPRR.org website's content. We appreciate your taking the time to share your comments about the use policies.
Our website does not restrict the free movement of ideas — the exact opposite is the case. Our website makes more information about the transcontinental railroad instantly available worldwide for free than any other source that has ever previously existed.
We're not sure if you have seen our rants page, but obviously we strongly disagree with your analysis of the use policy.
Our policy, while stated in more detail, does not differ significantly from that of almost all other museum and libraries (with the exception of the U.S. government which does not copyright its works).
Please permit us to take this opportunity to explain why we believe that your comments suggest that you do not understand the use policy, and that your views are apparently based on economic and legal misconceptions. Perhaps you'll be surprised by this simplified restatement of the use policy: Ask for permission and pay for commercial use of our work. We doubt that you take such offense to most website that simply state "Copyright © 2004, CPRR.org" — but except for ironing out some complicated wrinkles in intellectual property law to get back to the same result, that's about all the policy to which you seem to so strenuously object really says. Do you really get this apoplectic every time you come across a Copyright notice?
You appear to have confused legal concepts of "ideas" versus "tangible works." The use policy is mostly about about tangible works, not ideas (ideas if sufficiently novel and useful are the subject matter of patents, while tangible works such as writings or photographs are the subject matter of copyrights and the like).
When you take a book out from the library, you are free to read it (and to learn and disseminate the ideas), but do you think that you should be free to publish copies of the book for which you charge people without the permission of the author or other owner? When you visit a museum, you are free to look at the paintings, but do you think you should be free to shoplift reproductions of the pictures from the gift shop? How would you react if you were an artist and someone you invited into your home demanded that he had a right to photograph your latest painting displayed on your wall for his commercial use, and he told you that it was a travesty that you objected and he found it offensive that you wanted to be able to afford to live and continue painting?
We keep being surprised by the infrequent comments such as yours, which reflect a perception about internet content which we suspect you yourself would find strange and illogical if applied to more conventional experience. (Comments such as yours are received from an incredibly small minority of visitors, about 0.002%). The vast majority of the comments we receive are highly favorable.
People create books and websites to allow the free movement of their ideas — which is distinct from their getting paid for writing, etc. Patents are published to allow the free movement of ideas, which remain the property of the inventor.
You are free to view all our pages, enjoy the pictures, read the articles and absorb any and all ideas. If using the education that you thereby receive, you innovate new knowledge and create your own writings that are the product of your own thinking and creative efforts, that is not an issue.
Were it not for the use policies to which you object, however, we would not be able to offer all these ideas for free movement around the world. What we are not agreeing to, is for people to take the result of our considerable expense and labors and for others to make money using our work and investment without permission and compensation. You can't seriously believe that people would allow their valuable image collections to be displayed in high resolution online, spending hours restoring a digital reproduction to make a beautiful display, if the result was that they no longer owned the one thing that they can sell to support their efforts (reproduction rights for others to use their work for profit)? In fact, our display of high quality transcontinental railroad images online, and our "favorite homework pictures" charitable offering, seems to be a far more generous policy than any other private source of such images in the world.
Although most of the content on our website is from private collections that would be inaccessible if not for our and the donors' efforts, you mention the Library of Congress as an example. There is nothing in our use policy that would prevent you from obtaining the same publicly available content directly from the Library of Congress and using it in any way that you want. If our website made you aware of this material at the Library of Congress, great — that's an example of the free movement of ideas & information. However, if we spent years finding content, organizing it, and creating our website, and invested several hours fixing up a certain image, you are certainly free to do the same thing yourself with that particular image of interest, but you are not free to benefit financially by using our efforts in restoring the image without our permission, and, if appropriate, providing compensation. As an example of why the images on our website are not "the property of the people," please see the before and after images of the Library of Congress, Lincoln daguerreotype.
How do you propose that we pay for our museum website, if we allow free viewing, and charge for nothing?
Your comments about greedy lawyers are misdirected, as we are volunteer retired educators providing a free educational resource, not lawyers.
The intellectual property ideas which you characterize as a travesty are, contrary to your conception, actually the product of the renaissance and the enlightenment, and are a necessary precondition to making the modern world possible. Without ownership of both intellectual and physical property, it would not be feasible to make the huge investments necessary for the miraculous progress, prosperity, and longevity from which we all benefit.
You write "We waged the cold war for the free movement of people and ideas." That is quite true if understood correctly — the evil empire prevented ideas from entering and people from leaving. Contrary to your implication, however, the U.S. does not allow free movement of people, unfortunately, severely restricting immigration. Nor does the U.S. permit the free movement of ideas, in your meaning of those terms. To the contrary, from its inception, the ideas of liberty from the enlightenment, that people own themselves and the product of their inventiveness and labors, were incorporated in the first article of the U.S. constitution: "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
So, you have turned the cold war upside down and are arguing just backwards that the people should own the result of our efforts without permission and without paying. Your "property of the people" argument for expropriating our property, historically stated as "From Each According To His Abilities, To Each According To His Needs," [Karl Marx, Das Capital] has always and everywhere failed disastrously, so it is particularly ironic that you would cite the cold war to argue the losing proposition.
The mistaken notion that web content must be free, instead of available at a nominal cost that would maximize profits, is what prevents the result that you likely desire. A major reason that we need the policies to which you object is that visitors to websites won't pay for the value that they receive. When only 0.0004% of visitors feel obligated to contribute financially to support the website (we do ask for donations), the cost for paid commercial use must be quite high to cover the cost of all the freeloaders. Why is it reasonable for physical museums to charge admission, for bookstores to charge for books, for libraries to have taxpayer funding, for cable TV to be a paid service, for internet access to be a paid service, yet a web museum should be completely free? How do you make this out to be consistent or economically rational?


"Competition is merely the absence of oppression." —Frédéric Bastiat


RantFrom: Anonymous

I was dismayed to find my question to you online. ...

Reply:

We're concerned by your e-mail, as we went to such extraordinary lengths to prevent this sort of issue from arising. The purpose of having the public website is to make information relating to the transcontinental railroad widely available, and when we and others expend the effort to research questions, the website terms specify that those questions and answers must be available for publication so that they can benefit anyone who would be helped. We also generally can't obtain the information that people request without first publishing their inquiry. Also, due to the nature of the technology, and as a general rule there is likely no expectation of privacy when sending unencrypted e-mails because they are passed along through many hands, just like a postcard that you might mail, which has no envelope – so anyone involved in the delivery or storage or who has access can read the message. The website terms therefore clearly state in all caps: "YOU AGREE NOT TO SEND US ANYTHING THAT WE ARE NOT PERMITTED TO USE, PUBLISH, AND/OR REPUBLISH ROYALTY FREE. ... WHEN YOU SEND OR E-MAIL IT, IT'S OURS."

If you can be more specific about what you want redacted, where it is located, and why, we'll try to help, but we're not about keeping railroad, photographic, or historical information inaccessible, and you should understand that we were just following the website's user agreement, the published privacy policy, and many accompanying notices that clearly warn: "Only send content intended for publication." As stated in bold print, " ... provide us only with information or content, including but not limited to pictures, text, files, e-mails, and personally identifiable information, that you want us to have, publish at our sole discretion for all to see, and to use without restriction and in any medium."

This policy is reasonable and to be expected, since you chose to write to a public website. You are also only the second person of 1.4 million visitors to express any concern with this privacy policy.

We obtained permission to publish and provided these extensive privacy warnings and explanations because we do not have the ability to keep information private and due to the nature of the technology – i.e., that once you send or publish information, for example on the world wide web, that simply removing the information from a webpage, etc. does not make it once again private or inaccessible because multiple online and offline archival copies typically remain, including those maintained by independent third parties such as internet service providers, search engines, internet archives, the Library of Congress, and (sadly) possibly by law enforcement agencies. As the related FAQ says " ... It's not that we want to publish information that you would prefer be private, but we aren't mind readers, and we don't have the considerable resources that it takes to maintain confidentiality. Because we take privacy seriously, we ask that you please don't burden us with confidential information that we aren't equipped to safeguard."

See the published privacy policy, acceptance of which is a condition of using the CPRR.org website which specifically contains the strong warning, "never send us confidential information or information not intended for publication using any e-mail address or link on this website".


"A question that sometimes drives me hazy: am I or are the others crazy?" —Albert Einstein


RantFrom: "Jane E Warsinske" jane@advnet.net
Date: September 22, 2005 10:06:00 PM EDT
Subject: fees

I knew that there would be the word fees hidden in your site. I do not believe that you are protecting anyones rights, but your own to make a buck off other peoples photos. The very thing you so loudly claim to protect, until I read the word fees. I have several railroad photos that WILL NOT be shared with this site for you to make a buck off . Strange as it may seem, I enjoy sharing them with people who wish to do such terrible things as hang them on their walls or make a disk of photos to view. Evil as these things are to do. By the way a simple copyright overlay at the time of scanning in one of lower corners works well, not everyone is looking to make a million dollars from your site, just perhaps to share some railroad photos with a family member or friend.
Hope you get a better outlook on the human race. Jane

Reply:

Thank you for taking the time to write to let us know of your disagreement with what you believe we are doing.

Actually, though, at our own expense, and with years of effort, we volunteers (assisted by hundreds of contributors to whom we are most grateful) have created and hosted a website that is a free educational resource that has been enjoyed by more than a million visitors. You, on the other hand, smugly declare that you intend to keep your photographs hidden from the view of the many visitors to the CPRR.org website, and not let the wider world enjoy them. What's wrong with this picture? Who's the good guy and the bad guy here?

We are extremely proud of our hugely successful project, and make no apology for attempting to partially fund our website by charging people (actually mostly companies) who make money as a result of our efforts. Your misguided criticisms are also profoundly at variance with the sentiments of almost every other visitor who came to get information about the transcontinental railroad.

Sorry that you feel that way, but we must strongly disagree with your opinions, take offense at your nastiness and ingratitude, and regret that your e-mail indicates such a profound misunderstanding of what our website is all about and its stated policies. Clarification about much of the misinformation in your e-mail has long been available online, on this rants page.

Your absurd moral indignation, additionally is disturbing because it appears to be based on just the sort of misunderstanding of economics which leads well meaning people to be highly destructive by working against the very sources of prosperity.

Your comments about copyright overlay similarly indicate a lack of knowledge of the legal issues that need to be faced by an online museum, which are discussed at length on our website.

Finally, we need to point out that, although we don't know which pictures you have and are referring to in your correspondence, regretably, it is extremely unlikely that adding them to the thousands we show on-line would have even a remote chance of ever generating revenue for the CPRR Museum project.

Regrets.

 

From: "Jane E Warsinske" <jane@advnet.net>
Date: September 23, 2005 6:59:04 PM EDT
Subject: Re: fees

To the most misguided, smug, nasty, absurd, and unknowedgable people I have ever dealt with. Please by all means keep your site to your self. While I will share with others. Sorry if you don't care for my tone, but I am just using your own words. Do not worry you will not from me again. Jane

 

Reply:

Our actual policy is summarized by its first sentence: "This website is completely free (as in zip, zero, nada) for more that 99% of the visitors who just want to enjoy seeing the pictures, etc. online and are not making money by using our restorations." Neither that, nor what follows, leads to your opposite and incorrect conclusions.

The CPRR Museum website states: "If we can help, don't hestitate to ask! ... If you want permission to use a picture for no-fee personal use or some other special request, all you need to do is to ask us."

It's perfectly alright if you wanted to politely disagree with us, point out errors, or try to change our minds with coherent arguments – we welcome such feedback – but the erroneous characterizations in what you wrote suggest that you didn't do your homework before writing, and got incensed about fees for personal use which we don't charge.

A followup e-mail with a string of ad hominem attacks coupled with the self contradiction " ... keep your site to yourself ... " is not logical or useful. A website is the least kept to yourself thing in the world!

We are also disappointed that you failed to acknowledge or respond to a single point made in our previous reply or to the linked information. Your original e-mail contained no quotations, and stated almost the opposite of our policies, so we have no idea what you refer to when you say "I am just using your own words."

Finally, it is disingenuous for you to claim that "I will share with others" when what you actually said was "I have several railroad photos that WILL NOT be shared ... ". [emphasis in original]


RantFrom: RBPGregory@aol.com
Date: July 31, 2006 8:46:35 PM EDT
Subject: Observation

You let a great site and subject be tained by right wing suppositions.
 
r. gregory

Reply:

Thanks for taking the time to write. Our website does strongly favor both personal and economic freedom which we understand to be the founding principles of our country and the strongly held views of America's founding fathers, as expressed, for example in the Declaration of Independence and the Bill of Rights. As a result, we disagree with much of conservatism. (Although it is hard to know what right wingers really stand for as they say one thing and do another – for example, the idea of the Constitution was for a limited government with enumerated powers, and while right wingers say they are for small government, they instead give us rapidly increasing reckless spending, endless pork, and huge expansion of often counterproductive government programs.)

Can you be more specific about what you think are incorrect suppositions on the website and try to set us straight. Are there specific factual errors that we should correct? We would be glad to make corrections, if needed – or (if it is just a difference of opinion) to try to better explain why we believe our suppositions to be correct. Perhaps you can convince us, or vice versa. What are you trying to accomplish that you think we disagree with? – It may be that we have different ideas of how to best achieve similar objectives, be it economic prosperity, environment, education, eliminating poverty, affordable healthcare, justice, public policy, role of government, etc.

[no response]


Subject: Permission never granted to post our images

We never granted you permission to post our email address publicly nor our images and ... we had an expectation of privacy. I would like these removed immediately.

Reply:

Thank you for your e-mail. The concerns raised in your latest e-mail were anticipated and carefully considered in creating the online CPRR Museum, so are already addressed in great detail online.

All use of the CPRR Museum website and related activities is governed by the User Agreement, so you most certainly did give us permission to post, and were repeatedly warned on various web pages "Only send content intended for publication."

Almost every page notes:
" Use of this Web site constitutes acceptance of the User Agreement;
Click any image or link to accept."

Sorry, but you have no expectation of privacy when writing to a website ... and your request is not consistent with the terms of the CPRR.org User Agreement. We have gone to extraordinary lengths to provide notice regarding the contractual terms and conditions that govern use of the website and related messages.

The published Privacy Policy states, in part,
"We do not want, ask for, or need your private or proprietary information, so it is your responsibility and we are relying upon you ... to provide us only with information or content, including but not limited to pictures, text, files, e-mails, and personally identifiable information, that you want us to have, publish at our sole discretion for all to see, and to use without restriction and in any medium. ... "

You are warned repeatedly online that: "All use of this website and any related activity, including browsing and sending us messages, is governed by the CPRR.org User Agreement – so you should read the terms and conditions carefully because you are bound by them. Only send content intended for publication. Privacy policy."

As stated all over the website by this and similar notices, "© 2008 CPRR.org – By visiting this site you agree to the terms of the CPRR.org User Agreement. Permission to browse this website is contingent on acceptance of the User Agreement."

More specifically, our contract provides:
"Caution: ... Only send content intended for publication." ...
"We greatly enjoy seeing images that you may have and are willing to have included in the CPRR Museum, and are glad to attempt to assist with image identification or restoration (image researchers and collectors please take careful note of our donations policy which does apply to any images sent to us with a question, inquiry, or request for identification or restoration), however, to make best use of our limited resources, you must tell us all of what you already know about each such 'unknown' photograph and its photographer at the time of your first inquiry, and you agree to also supply us high resolution digital copy(ies) of the image(s) in your possession that is/are the subject of your inquiry. However, in the event that you make such an inquiry while failing to provide us with donated copies your image(s) that are the subject of your inquiry, in violation of the forgoing, you agree to pay a research fee corresponding to one hour per e-mail you send us." ...
"We take very seriously being put in legal jeopardy and/or having our limited resources squandered, so do not donate, send, or sell to us content that has any associated use restrictions, which you don't want to be online, or which violates our donations policy, as removal from this website of content previously provided by you and any associated tasks which are required to respond to and/or comply with a takedown notice (or in response to a removal request initiated by you which we chose to act upon at our sole discretion) will be charged to you at the published hourly rate for custom modification to the website for the wasted efforts both in creating the original web content to be removed and for its removal, in addition to any legal fees, and other costs and liability incurred." ...
"You agree that this web page alone constitutes the entire User Agreement ... Consequently you may not send us your contracts, offers, requirements, forms, purchase orders, files, gift restrictions, confidentiality notices, or other communications containing terms and/or conditions which differ from this User Agreement which if received in violation of the foregoing will be ignored if possible, and will have no effect, but which may if deemed necessary in our sole discretion be subject to legal review at your expense." ...
"DONATIONS ... YOU AGREE NOT TO SEND US ANYTHING THAT WE ARE NOT PERMITTED TO USE, PUBLISH, AND/OR REPUBLISH ROYALTY FREE. ... AND YOU ARE GRANTING TO US AN UNRESTRICTED, PERPETUAL, PERMANENT, IRREVOCABLE, TRANSFERABLE, SUBLICENSABLE (THROUGH MULTIPLE TIERS), NON-EXCLUSIVE, UNCONDITIONAL, FULLY PAID-UP, ROYALTY FREE LICENSE TO ALL RIGHTS TO SUCH MATERIAL, CONTENT AND/OR INFORMATION THAT GRANTS PERMISSION FOR USE ANYWHERE THROUGHOUT THE UNIVERSE, IN ANY MANNER, AND FOR ANY PURPOSE (INCLUDING BUT NOT LIMITED TO THE RIGHT TO REPRODUCE, PUBLISH, SELL, LICENSE, AND/OR DISTRIBUTE COPIES OF WORKS CONTAINING THE CONTRIBUTION, SELECTIONS THEREFROM, AND TRANSLATIONS AND OTHER DERIVATIVE WORKS AND/OR EDITIONS), WITHOUT COMPENSATION TO YOU ... " ...


We acknowledge N. Kent Loudon's disclaimer which suggested some "improvements" to our force majeur clause: "Disclaimer: (It's a damn shame I have to say all this, just blame it on ignorance, intolerance, fanaticism and lawyers!) I am NOT responsible if an uninsured item is lost in transit, or if ANY item is confiscated, legally or illegally, by anyone for any reason, or if an item is lost due to natural catastrophe, or acts of piracy, war, insurrection, civil disturbance, terrorism, any of the seven deadly sins, or any other forms of abject stupidity by anyone other than myself. So there!"


"Against the assault of laughter nothing can stand." Mark Twain

"No matter what happens, somebody will find a way to take it too seriously." —Dave Barry

Recommended webmaster supplies: (1) hard hat, (2) flak jacket, (3) flame proof vest.

"The well-constructed troll is a post that induces lots of newbies and flamers to make themselves look even more clueless than they already do, while subtly conveying to the more savvy and experienced that it is in fact a deliberate troll."


IT AIN'T SO!
(with apologies to gullible blogees ... )

Reply to the Yale Law Blog (highly critical of our functional parody, yet displaying a surprising lack of awareness of recent court decisions, providing no counterexample, not a single constructive suggestion, nor an offer to help):

Glad to be able to provide some amusement to the Yale legal community with our CPRR.org User Agreement.
Hope that you also have enjoyed seeing the historic transcontinental railroad images and history.
Would you and your colleagues be willing to provide some assistance to make the language more to your liking? We hoped that you would notice our longstanding plea for help, acknowledging in the agreement that it is "completely ridiculous," quoting Shaw "I'm sorry this letter is so long, I didn't have time to write a short one" and imploring the legal community: "if you know of a better, simpler 'legally correct' way, do tell us how!"
It is very expensive and time consuming to acquire and artistically restore historic photographs, and we wanted to share thousands of these wonderful images by placing them online for free viewing by the public without inadvertently giving away the publication rights which need to be retained to make our and other museums financially viable. If the law relating to publication of restored historic images was not in such a mess, a copyright notice would suffice, and no website user agreement would be needed. We are having a bit of fun, but also need this to function as an effective agreement.
We are surprised that the comments in your blog seem to suggest lack of awareness of the landmark cases both on copyright originality, and on website contract formation that made drafting this user agreement so problematic.
The blog comment " ... So the only reproduction is a modern photograph, which CAN be copyrighted" appears to get both the law and the facts wrong. The following case holds just the opposite – that such slavish reproductions CANNOT be copyrighted:
BRIDGEMAN ART LIBRARY, LTD. v. COREL CORP., 36 F. Supp. 2d 191 (S.D.N.Y. 1999)
(The historic 19th century photographs are not unique, and the intellectual property on our website to be protected is not simply scans of public domain images, but rather careful artistic restorations.)
We are puzzled by the remark that the user agreement employs a "novel definition of originality" as the language used merely strings together verbatim all of the applicable criteria for photo originality that we could find as stated in landmark copyright decisions.
To respond to the dilemma as to how to be able to have a museum website in the face of Bridgeman v. Corel placing in doubt the applicability of copyright, we independently created a strategy that turned out to follow the recommendations of the Harvard law school teaching fellow's legal memorandum on this issue obtained by the Museum community:
" 1. introducing creative variations into the digitization process to increase the chances of the digital copies qualifying for copyright protection (but this would defeat the purpose of provided a true reproduction);
2. assembling digitized images in a collection may provide copyright protection to the collection as a whole, just as would providing value-added text and documentation, but will not protect the underlying works if they are not independently protected;
3. seeking to impose contractual restrictions upon subsequent use of the digital copies through licensing (but note a contract will not bind a third-party user who obtains the digital image); and
4. exploring the possibility of placing technological restrictions on copying. This is the most practical measure."
Do you disagree? Can you recommend something better?
The comments, "My favorite is the 'Click any image or link to accept user agreement' notice.", etc. suggest lack of awareness of the huge contract formation problem created by SPECHT v. NETSCAPE which we attempt to overcome in a user friendly way by prominent notices and "click any image or link to accept" rather than the nightmarish internet redesign of locking people out of each website until they first visit the user agreement page and hit a click to accept button, which the court apparently advocates.
It seems ironic to attack the complexity of this user agreement as being "obsessive" and then immediately proceed to nitpick in an attempt to invalidate or work around the approach taken, saying:
"Does that mean that:
• All of the images on the home page are up for grabs, and
• I can simply type or copy and past[e] a deep link from the source of the site, and am no longer bound by this agreement?"
Part of what is criticized as "redundant" are the necessarily alternate approaches that foreclose both of these suggested workarounds, for example by specifying alternate actions that also signify acceptance of the agreement. (Such as making it impossible to access an image without sending the message "I_ACCEPT_the_User_Agreement" to the CPRR.org server.)
The comment suggesting that we do not realize the value of phrases like "including but not limited to" seems rather silly as that construction is used 41 times in the user agreement.
As you deride the CPRR.org user agreement as being "ridiculously overreaching" we challenge you and your colleagues to please show us a single example of another user agreement more to your liking anywhere on the internet for a museum website displaying historic images that you are confident both (1) actually forms a contract in view of Specht v. Netscape, and (2) successfully retains publication rights for displayed historic images even if they cannot be copyrighted, as in Bridgeman v. Corel. We can't find one.

P.S. The original blog poster finally responded, declining to assist or point out any other museum user agreement more to his liking anywhere on the internet because he believes "CPRR shouldn't have intellectual property rights in its images" — we think it is rather disingenuous to attack on technical merits while concealing the apparent agenda that "I think the underlying legal purposes here aren't very good ones." Kind of hard to please someone who thinks that all possible alternatives are bad. We've put years of effort into this website and had hoped that the notion of systematically depriving people of the fruits of their labor went out with the 13th amendment and the fall of the Berlin wall. The Yale law student's hostility to rights regarding the use of historic photographs and his apparent desire to make original derivative works utilizing public domain sources commercially worthless are out of the main stream, as evidenced, for example, by the recent extension of copyright motivated in part by an intent by Congress to preserve Disney's rights to Mickey Mouse and other works that were based on public domain characters, and by his own University's Museum Policy on Usage Rights and Reproductions which states, just like ours, that "When permission is granted for Commercial Use, images, text and data may be reproduced for personal or corporate gain in publications, such as textbooks and field guides, and in films, television, electronic media and other commercial products. The Museum reserves the right to regulate the nature and limit the duration of Commercial Use, to set fees, and to require that copies of any publication or product that includes Peabody materials be provided to the appropriate Division(s) or the Museum Archivist." Similarly their website policy is that: "All text, images and data located on the Peabody Museum’s website are copyright © 1996–2002 by the Peabody Museum of Natural History, Yale University, unless otherwise stated. The material on the Yale Peabody Museum website is intended for personal, educational and scientific use only, and may not be published, redistributed, reproduced, or otherwise used for commercial purposes in any form or media without the prior written consent of the Yale Peabody Museum." So if he wanted to pick a fight, he did not need to wander so far off campus, and we wonder if the animus and personal attack instead directed at us was due to a belief that perhaps our attempt at drafting an enforceable policy not any different from that of his University was actually successful.

The reality of the situation is being confused by the discussion of intellectual property. People have the right to keep their private collections in a drawer and show them to nobody or only to those whom they chose to grant access. We don't see why using the internet to show what's in the drawer at a distance only to people who agree not to do anything other than look without asking permission should change anything. Almost all museums have this requirement when you show up in person to look – and no justification has been advanced as to why looking at a distance is different. Be careful what you wish for! – If, as the law student advocates, any historic picture that he can see is his for the taking, then such pictures will stay in the drawer unseen, or at best only poor quality renditions will be shown.

The copyright notices and short summaries of the user agreement plastered all over the website clearly, conspicuously, and immediately disclose the most important terms of service as well as how to access the user agreement, making them almost impossible to accidentally disregard. Internet commerce is legally complicated, so we think that the CPRR.org User Agreement was unfairly singled out by the Yale law student blogger with the objectively false claim that it is the "most ambitious web site user agreement of all time ... ridiculously overreaching ... the legalese is an astonishing 21,000 words long." The eBay User Agreement and related Policies (excluding policy FAQ's and PayPal) which are scattered over many pages on their website are 99,590 words long, almost five times as long as ours. We wouldn't recommend attempting the argument to the IRS that because the 4,200 page tax code is hundreds of times longer and far more overreaching that "its sheer bulk becomes an invitation to disregard it" as the law student naively attempts with us. While speculating that as a result "people aren't even attempting to read the terms," he caused a stampede of some 10,000 website visitors, who read and clearly demonstrated their ability and interest to analyze and discuss in detail our terms of service on Slashdot – a demonstration that contradicts his suppositions far more persuasively than we ever could.


"You have the right to remain silent. Anything you say will be misquoted and used against you."

Thanks to the dozen Slashdotters who wrote to us. Some comments for the others:

We think that most of the ./'s have missed the comments in the user agreement asking for help and noting we think that the legal situation is "completely ridiculous," quoting Shaw "I'm sorry this letter is so long, I didn't have time to write a short one" and Caution: Hard Hats Requiredimploring the legal community: "if you know of a better, simpler 'legally correct' way, do tell us how!"
Talk about missing the big picture – what our functional parody actually says is that the website is completely free for more that 99% of the visitors who just want to enjoy seeing the pictures and are not making money by using our restorations.
17liberty76 summed it up aptly by observing that the "CPRR Museum [Terms of Service] is a museum curator's equivalent of a primal scream."
But, there really does seem to be a difficult dilemma created by recent court cases that keep high quality large images off most museum websites, and we've been asking for help with this for five years. Why isn't just a copyright notice sufficient?
One person asked why did we initiate a "public discourse"? – We didn't: some legal eagles who didn't take the trouble to learn about the problems created by a couple of recent court decisions, misunderstood a humorous plea for help – and didn't read what we had already posted on-line – started a ruckus that was pickup up by Slashdot. Give us a break – starting out with moving eyeballs and lawyer jokes, while stating that it is "completely ridiculous" should be adequate notice that people need to dig a bit deeper. They never contacted us, as we asked on the website, to help or to find out what this was really about, and have not responded to our explanation of the issues, so what makes it a discourse? We wrote to the person who initially posted the message explaining the actual legal dilemmas and have not had the courtesy of a reply.
What amazes us is that despite our citing the specific cases that create what appears to be a difficult legal mess for museum websites that keeps high quality images off the net, the issues raised just keep being ignored by everyone. We read through every one of the posts at the Yale blog and at Slashdot hoping that someone would have read about the problems and come up with some helpful suggestions or insights. No such luck – is almost everyone really so lazy that they can't be bothered finding out what is at issue? Another example of "the madness of crowds." Lots of noise, lack of civility, threats to loot our website, and everyone ignoring the real issues, following the herd, and trying to score outrage points. That's why politics is so dismal. We're just glad that the servers that we luckily upgraded to last week have so far withstood the onslaught, so that the real visitors to our website who care about railroads (and all the kids doing their homework) weren't inconvenienced by the Slashdotting.
One of the most objectively inaccurate of the posted comments supposes (based on pseudo-psychoanalysis of the user agreement) that "these people are not so much interested in presenting history, as in being recognised as the only source of that history" [emphasis in original] failing to observe that the CPRR Museum is published under a pseudonym (as in a higher form of anonymous charity – not a great choice for recognition seekers!!) and that this website (with many thousands of external links while many museum websites have none) far from pretending to be the "only source" instead not only displays material from more than 250 other named generous donors, links to every other scholarly transcontinental railroad website, and recommends that visitors buy images from other museums, but also meticulously indexes other collections, documents every other public source of these images, includes a catalog of where exactly every single other publicly available historic CPRR image can be found elsewhere, shows how to obtain the images at auction, and links to every private dealer known to sell such images.
Humor aside, for someone who just wants to see the wonderful historic images on our website, the user agreement says nothing much of interest. For someone who wants to use the pictures for other personal use, they just have to ask. The commercial reproduction rights are valuable and provide the funding to make it possible to have thousands of high quality historic images online for free viewing by the public.
We are very sympathetic with one writer's sentiments that "I just think people are getting WAY too serious about 'guarding' the value of their intellectual property." After all, we did post thousands of high quality images online at our expense, and have yet to decline a request or charge anyone who e-mailed us wanting some of our pictures for personal use. However, we had someone copy the entire website, break most of the links, take out the copyright notice, put it on his server, and then start distributing CD's of the broken version of our website. This type of activity makes our years of effort look really bad, prevents us from making needed updates and corrections, and puts the whole project in jeopardy. In another example, another website pirated a cherished family photograph of one of our donors and put it on their website, claiming credit that it was theirs. You can imagine how upset the donor was.
If you are still not convinced, we urge you to read this page from the top to see why many of the concerns expressed are in reality non-issues. We have also reponded to the Slashdot comments by adding explanatory pop-up FAQ's to the user agreement page.
Too bad that in the rush to score outrage points, the posters on the Yale blog and Slashdot weren't willing to e-mail us to engage the issues and offer constructive help. We're all volunteers, and if you have some legal expertise in this area, we'd sure appreciate some pro bono assistance.
We are gratified that people who actually care about the railroad almost universally (>99% of comments received) love the website.
We were already #1 in the "transcontinental railroad" category on Google and hope that some of the new visitors from Slashdot stayed around long enough to enjoy seeing some the thousands of photographs, stereoviews, engravings, maps, and historical documents.


P.S. Please feel free to direct any further concerns to the one of the fine members of the Department of Complaints: George P. Burdell, David Manning, Nat Tate, and Taro Tsujimoto.



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