Who owns Pennsylvania’s digitized history? Court battle with Ancestry.com could set national precedent
HARRISBURG — A landmark legal battle over the ownership of millions of digitized historical records has reached the Pennsylvania Commonwealth Court, a case that could redefine public access to government archives in the digital age. At the center of the dispute is a fundamental question: do digital copies of public records belong to the taxpayers who own the originals, or to the private corporations that scanned them?
The case pits the Pennsylvania Historical and Museum Commission (PHMC) and genealogy giant Ancestry.com against Alec Ferretti, a professional genealogist and director at the nonprofit Reclaim the Records. On Wednesday, the court heard arguments regarding a 2022 Right-to-Know request filed by Ferretti, who sought to obtain the digital images and metadata for roughly 18 million state records currently hosted on Ancestry’s servers.
The 2008 “no-cost” contract
The roots of the conflict lie in a 2008 agreement between the PHMC and Ancestry. Under the deal, Ancestry agreed to digitize vast troves of Pennsylvania’s physical archives—including birth and death certificates, veterans’ burial cards, naturalization forms, and records of enslaved people—at no cost to the state. In exchange, Ancestry received exclusive rights to host these images online.
For the state, the arrangement was framed as a massive cost-saving measure. Digitizing 18 million documents would have cost Pennsylvania taxpayers millions of dollars it did not have. Instead, the state secured a “freemium” model: Pennsylvania residents can access the records for free, provided they create a user account with Ancestry. Everyone else, including out-of-state researchers like Ferretti, must pay for an Ancestry subscription or travel physically to the State Archives in Harrisburg to view the documents on-site.
The legal fight for control
Ferretti’s legal team argues that because Ancestry was hired to perform a governmental function—preserving and providing access to state records—the digitized files are public records subject to Pennsylvania’s Right-to-Know Law. When Ferretti requested the raw data to publish it freely online, the PHMC denied the request, claiming it did not “possess” the digital files because they reside on Ancestry’s servers.
However, the state’s Office of Open Records (OOR) previously ruled in Ferretti’s favor, declaring that a government agency cannot evade transparency laws simply by outsourcing storage to a third party. PHMC and Ancestry appealed that ruling, leading to this week’s Commonwealth Court hearing.
Objections from the state and industry
Lawyers for Ancestry and the PHMC presented sharp objections to the release of the data. Ancestry argued that while the original paper documents are public, the digital images and the searchable indices created by their proprietary technology are “work product” owned by the company. They contend that forcing them to hand over their entire database would violate their intellectual property rights and destroy the business model that allows them to digitize records for states for free.
If the court rules that these digital assets are public property, legal experts warn it could have a chilling effect on public-private partnerships. Companies may be unwilling to invest in digitizing crumbling government archives if the resulting product can immediately be seized and distributed for free by competitors or activists.
The “Citizen Archivist” movement
Background information provided by Reclaim the Records highlights a growing “citizen archivist” movement that views these exclusive contracts as a privatization of public history. They argue that the current system creates a two-tiered access model: one for those who can afford subscriptions or travel, and one for everyone else. Furthermore, privacy advocates object to the requirement that Pennsylvania residents must hand over personal data to a private corporation to access public government documents.
“The government is effectively granting a monopoly on our history to a single corporation,” Ferretti has argued in similar cases across the country. His organization has successfully sued multiple states to release death indices and other vital records, often uncovering errors in the official private databases in the process.
The court’s decision is expected to take several months. A ruling in Ferretti’s favor could force Pennsylvania to obtain the 18 million images from Ancestry and release them into the public domain, potentially ending the era of exclusive digitization deals.
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