From: Jim O'Donnell <[log in to unmask]>
Date: Mon, 10 Feb 2014 20:48:07 -0500

Professor Carroll, Could I ask a couple of further questions about
your thought-provoking post and hope you respond to the list?

When you speak of a license agreement that denies the right to
text-mine as "giving up a user's right", do I understand you correctly
to be saying that this is one of the consequences of making a
licensing rather than a purchase transaction?  That is to say, there
are a lot of things that I can do with a copyrighted object that I
purchase and as long as they do not violate the four criteria of fair
use, those things are things a user has a right to do.  But if the
copyright owner licenses my use of the book rather than sells it to
me, then we start at zero and build up the rights the owner is willing
to give me.  So if I compare "should I license" with "should I buy",
licensing will often be at a disadvantage.  (A public library letting
me check out a book is licensing my use of it, but I do not have the
same right to let my dog use it as a chew toy that I would have if I
purchased it outright.  The dog gets good answers to the four fair use
questions, of course.)

Second, could you just be a bit more explicit about how you see the
Google Books decision supporting the retention of reference copies as
transformative use?  I'm trying to understand how storing many
gigabytes of a publisher's database so that I can consult it again if
the need arises deserves that description.  To push a little, would
making a complete copy of the database on my own machine, in case this
intrinsically networked resource should be unavailable due to network
problems, not be equally a transformative use?  If you say yes, I'm
sure publishers and their lawyers would remonstrate.

In both cases, I'm sympathetic with the position you're ending up
with, but in both cases I find myself pausing a little more
uncertainly than I'm comfortable with.

Jim O'Donnell
Georgetown University

> ---------- Forwarded message ----------
> From: LIBLICENSE <[log in to unmask]>
> Date: Wed, Feb 5, 2014 at 7:54 PM
> Subject: Re: Who should control text mining rights?
> To: [log in to unmask]
>
>
> From: Michael Carroll <[log in to unmask]>
> Date: Wed, 5 Feb 2014 09:08:32 -0500
>
> Just so everyone is clear, in the United States text mining is a user's
> right not a copyright owner's right.  When a library signs an agreement
> denying users the right to bulk download for the purpose of text mining,
> the library is giving up a user's right in exchange for access to the
> publisher's database of articles.  I understand that this may be part of
> the price for access, but you should at least get a discount since you're
> being asked to give up some legal rights as well as money in exchange for
> access.  In Europe, the legal situation is more complicated because of
> database rights and the absence of fair use.
>
> Here's the quick explanation.  If by "text mining" we mean computational
> analysis of textual data that results in durable outputs that extract
> facts and ideas but not actual chunks of text, then there are two ways to
> go about it.  Because computers have to make copies to function, temporary
> copies are made in the computer's random access memory while the
> processing is going on.  In the US, the user has the right to make these
> copies.  Why?
>
> The copyright owner owns the exclusive right to reproduces the copyrighted
> work "in copies or phonorecords."  A "copy" is a defined term that
> requires that the copy be "fixed" in a tangible medium.  The courts have
> agreed that digital data residing on a hard drive is "fixed."  But, for a
> work to be fixed it must be capable of being "perceived, reproduced or
> otherwise communicated" for a period of "more than transitory duration."
> The Second Circuit Court of Appeals has ruled that a buffer copy lasting
> only 1.2 seconds was not "fixed" because that is a transitory period.
> Therefore, the temporary copy is not a "copy" under copyright law and
> therefore users rather than copyright owners have the right to make such
> temporary copies.
>
> (I know that's more complicated than it should be, and it's why we lawyers
> often put words in quotes to signal that a word may have a specific legal
> meaning rather than its plain ordinary meaning.)
>
> So if your users just want to run the analysis off of the copies stored on
> the library's or publisher's hard drive, no copying is taking place as far
> as copyright law is concerned.
>
> However, most researchers also want to keep a reference copy of all of the
> text.  Can they?  Yes, if they are not making these copies publicly
> available.  Making these copies for the purpose of serving as a reference
> to back up research results is a transformative use that does not harm the
> copyright owner's economic rights in the works and is therefore a fair
> use.  I've been saying this for some time, but it's nice that the same
> court of appeals essentially came to the same conclusion in the Google
> Books case.
>
> So, Elsevier may have the rights to control text mining in some European
> countries, but this announcement still means that in the US Elsevier wants
> to control computational research in ways that go beyond its rights as a
> copyright owner.
>
> Best,
> Mike
>
>
> Michael W. Carroll
> Professor of Law and Director,
> Program on Information Justice and Intellectual Property
> American University Washington College of Law
> Washington, D.C. 20016
>
> Faculty page: http://www.wcl.american.edu/faculty/mcarroll/
> Blog: http://carrollogos.blogspot.com
> Creative Commons: http://creativecommons.org
> Public Library of Science: http://www.plos.org