Author: Dan Cohen

I’ve spent the past two weeks trying to get a better understanding of the agreement signed by the National Archives and Footnote, about which I raised several concerns in my last post. Before making further (possibly unfounded) criticisms I thought it would a good idea to talk to both NARA and Footnote. So I picked up the phone and found several people eager to clarify things. At NARA, Jim Hastings, director of access programs, was particularly helpful in explaining their perspective. (Alas, NARA’s public affairs staff seemed to have only the sketchiest sense of key details.) Most helpful—and most eager to rebut my earlier post—were Justin Schroepfer and Peter Drinkwater, the marketing director and product lead at Footnote. Much to their credit, Justin and Peter patiently answered most of my questions about the agreement and the operation of the Footnote website.

Surprisingly, everyone I spoke to at both NARA and Footnote emphasized that despite the seemingly set-in-stone language of the legal agreement, there is a great deal of latitude in how it is executed, and they asked me to spread the word about how historians and the general public can weigh in. It has received virtually no publicity, but NARA is currently in a public comment phase for the Footnote (a/k/a iArchives) agreement. Scroll down to the bottom of the “Comment on Draft Policy” page at NARA’s website and you’ll find a request for public comment (you should email your thoughts to Vision@nara.gov). It’s a little odd to have a request for comment after the ink is dry on an agreement or policy, and this URL probably should have been included in the press release of the Footnote agreement, but I do think after speaking with them that both NARA and Footnote are receptive to hearing responses to the agreement. Indeed, in response to this post and my prior post on the agreement, Footnote has set up a web page, “Finding the Right Balance,” to receive feedback from the general public on the issues I’ve raised. They also asked me to round up professional opinion on the deal.

I assume Footnote will explain their policies in greater depth on their blog, but we agreed that it would be helpful to record some important details of our conversations in this space. Here are the answers Justin and Peter gave to a few pointed questions.

When I first went to the Footnote site, I was unpleasantly surprised that it required registration even to look at “milestone” documents like Lincoln’s draft of the Gettysburg Address. (Unfortunately, Footnote doesn’t have a list of all of its free content yet, so it’s hard to find such documents.) Justin and Peter responded that when they launched the site there was an error in the document viewer, so they had to add authentication to all document views. A fix was rolled out on January 23, and it’s now possible to view these important documents without registering.

You do need to register, however, to print or download any document, whether it’s considered “free” or “premium.” Why? Justin and Peter candidly noted that although they have done digitization projects before, the National Archives project, which contains millions of critical—and public domain—documents, is a first for them. They are understandably worried about the “leakage” of documents from their site, and want to take it one step at a time. So to start they will track all downloads to see how much escapes, especially in large batches. I noted that downloading and even reusing these documents (even en masse) very well might be legal, despite Footnote’s terms of service, because the scans are “slavish” copies of the originals, which are not protected by copyright. Footnote lawyers are looking at copyright law and what other primary-source sites are doing, and they say that they view these initial months as a learning experience to see if the terms of service can or should change. Footnote’s stance on copyright law and terms of usage will clearly be worth watching.

Speaking of terms of usage, I voiced a similar concern about Footnote’s policies toward minors. As you’ll recall, Footnote’s terms of service say the site is intended for those 18 and older, thus seeming to turn away the many K-12 classes that could take advantage of it. Justin and Peter were most passionate on this point. They told me that Footnote would like to give free access to the site for the K-12 market, but pointed to the restrictiveness of U.S. child protection laws. Because the Footnote site allows users to upload documents as well as view them, they worry about what youngsters might find there in addition to the NARA docs. These laws also mandate the “over 18” clause because the site captures personal information. It seems to me that there’s probably a technical solution that could be found here, similar to the one PBS.org uses to provide K-12 teaching materials without capturing information from the students.

Footnote seems willing to explore such a possibility, but again, Justin and Peter chalked up problems to the newness of the agreement and their inexperience running an interactive site with primary documents such as these. Footnote’s lawyers consulted (and borrowed, in some cases) the boilerplate language from terms of service at other sites, like Ancestry.com. But again, the Footnote team emphasized that they are going to review the policies and look into flexibility under the laws. They expect to tweak their policies in the coming months.

So, now is your chance to weigh in on those potential changes. If you do send a comment to either Footnote or NARA, try to be specific in what you would like to see. For instance, at the Center for History and New Media we are exploring the possibility of mining historical texts, which will only be possible to do on these millions of NARA documents if the Archives receives not only the page images from Footnote but also the OCRed text. (The handwritten documents cannot be automatically transcribed using optical character recognition, of course, but there are many typescript documents that have been converted to machine-readable text.) NARA has not asked to receive the text for each document back from Footnote—only the metadata and a combined index of all documents. There was some discussion that NARA is not equipped to handle the flood of data that a full-text database would entail. Regardless, I believe it would be in the best interest of historical researchers to have NARA receive this database, even if they are unable to post it to the web right away.

I suppose it’s not breaking news that libraries and archives aren’t flush with cash. So it must be hard for a director of such an institution when a large corporation, or even a relatively small one, comes knocking with an offer to digitize one’s holdings in exchange for some kind of commercial rights to the contents. But as a historian worried about open access to our cultural heritage, I’m a little concerned about the new agreement between Footnote, Inc. and the United States National Archives. And I’m surprised that somehow this agreement has thus far flown under the radar of all of those who attacked the troublesome Smithsonian/Showtime agreement. Guess what? From now until 2012 it will cost you $100 a year, or even more offensively, $1.99 a page, for online access to critical historical documents such as the Papers of the Continental Congress.

This was the agreement signed by Archivist of the United States Allen Weinstein and Footnote, Inc., a Utah-based digital archives company, on January 10, 2007. For the next five years, unless you have the time and money to travel to Washington, you’ll have to fork over money to Footnote to take a peek at Civil War pension documents or the case files of the early FBI. The National Archives says this agreement is “non-exclusive”—I suppose crossing their fingers that Google will also come along and make a deal—but researchers shouldn’t hold their breaths for other options.

Footnote.com, the website that provide access to these millions of documents, charges for anything more than viewing a small thumbnail of a page or photograph. Supposedly the value-added of the site (aside from being able to see detailed views of the documents) is that it allows you to save and annotate documents in your own library, and share the results of your research (though not the original documents). Hmm, I seem to remember that there’s a tool being developed that will allow you to do all of that—for free, no less.

Moreover, you’ll also be subject to some fairly onerous terms of usage on Footnote.com, especially considering that this is our collective history and that all of these documents are out of copyright. (For a detailed description of the legal issues involved here, please see Chapter 7 of Digital History, “Owning the Past?”, especially the section covering the often bogus claims of copyright on scanned archival materials.) I’ll let the terms speak for themselves (plus one snide aside): “Professional historians and others conducting scholarly research may use the Website [gee, thanks], provided that they do so within the scope of their professional work, that they obtain written permission from us before using an image obtained from the Website for publication, and that they credit the source. You further agree that…you will not copy or distribute any part of the Website or the Service in any medium without Footnote.com’s prior written authorization.”

Couldn’t the National Archives have at least added a provision to the agreement with Footnote to allow students free access to these documents? I guess not; from the terms of usage: “The Footnote.com Website is intended for adults over the age of 18.” What next? Burly bouncers carding people who want to see the Declaration of Independence?