Thanks to Digitization 101 ‘s recent post “Footnote launches and announces partnership with National Archives ” I was made aware of the big news about the digitization of the US National Archives’ records. Footnote.com  has gone live with the first of apparently many planned installments of digitized NARA records. My first instinct was one of suspicion. In the shadow of recent historian alarm  about the Smithsonian/Showtime deal , I think its valid to be concerned about new agreements between government agencies and private companies.
That said, I am feeling much more positive based on the passage below from the the January 10th National Archives Press Release  about the agreement with Footnote (emphasis mine):
This non-exclusive agreement, beginning with the sizeable collection of materials currently on microfilm,will enable researchers and the general public to access millions of newly-digitized images of the National Archives historic records on a subscription basis from the Footnote web site. By February 6, the digitized materials will also be available at no charge in National Archives research rooms in Washington D.C. and regional facilities across the country. After an interval of five years, all images digitized through this agreement will be available at no charge through the National Archives web site .
This sounds like a win-win situation. NARA gets millions of records digitized (4.5 million and counting according to the press release). These records will be highlighed on the Footnote web site. They will have the advantages of Footnote’s search and browse interfaces (which I plan to do an in depth review of in the next week).
When signing up for my free account – I actually read through the entire Footnote Terms of Service  including this passage (within the section labeled ‘Our Intellectual Property Rights’ – again, emphasis mine):
Content on the Website is provided to you AS IS for your information and personal use only as permitted through the functionality of the Website and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners . Footnote.com reserves all rights not expressly granted in and to the Website and the Content. You agree not to engage in the use, copying, or distribution of any of the Content other than expressly permitted herein, including any use, copying, or distribution of User Submissions of third parties obtained through the Website for any commercial purposes. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein.
These terms certainly are no different from that under which most archives operate – but it did give me a moment of wondering how many extra hoops one would need to jump through if you wanted to use any of the NARA records found in Footnote for a major project like a book. A quick experiment with the Pennsylvania Archives  (which are available for free with registration) did not show me any copyright information or notices related to rights. I downloaded an image to see what ‘copyright and other proprietary notices’ I might find and found none.
In his post “The Flawed Agreement between the National Archives and Footnote, Inc. “, Dan Cohen expresses his views of the agreement. I had been curious about what percentage of the records being digitized were out of copyright – Dan says they all are. If all of the records are out of copyright – exactly what rights are Footnote.com reserving (in the passage from the terms of service shown above)? I also agree with him in his frustration about the age restriction in place for using Footnote.com (you have to be over 18).
My final opinion about the agreement itself will depend on answers to a few more questions:
1) Were any of the records recently made available on Footnote.com already digitized and available via the archives.gov website?
2) What percentage of the records that were digitized by Footnote would have been digitized by NARA without this agreement?
3) What roadblocks will truly be set in place for those interested in using records found on Footnote.com?
4) What interface will be available to those accessing the records for free in “National Archives research rooms in Washington D.C. and regional facilities across the country” (from the press release above)? Will it be the Footnote.com website interface or via NARA’s own Archival Research Catalog  (ARC) or Access to Archival Databases  (AAD)?
If the records that Footnote has digitized and made available on Footnote.com would not otherwise have been digitized over the course of the next five years (a big if) then I think this is an interesting solution. Even the full $100 fee for a year subscription is much more reasonable than many other research databases out there (and certainly cheaper than even a single night hotel room within striking distance of National Archives II ).
As I mentioned above, I plan to post a review of the Footnote.com search and browse interfaces in the next week. The Footnote.com support folks have given me permission to include screen shots – so if this topic is of interest to you, keep an eye out for it.
- NARA’s Electronic Records Archives in West Virginia 
- National Archives Transitions to Flickr Commons Membership 
- ISSUU: Interesting Platform for Online Publishing 
- Google Newspaper Archives