From: Michael Carroll <[log in to unmask]>
Date: Mon, 17 Feb 2014 09:37:08 -0500

A quick response.  Generally, in the US, we have a strong ideology of
freedom of contract and we don't have an equally strong commitment to
treating user's rights in copyright as mandatory provisions.  So, if a
user is willing to give up her rights, or if a library is willing to
require users to give up their rights, in exchange for access to
copyrighted content, the courts are not likely to intervene.

From the court's perspective, this is a claim, "Please save me from the
terms that I just agreed to."  Copyright misuse would apply when the court
would be convinced that one party to the agreement had no real choice but
to agree to such terms.  While I understand that many librarians may feel
that way about giving up their users' fair use and text mining rights, a
court would be unlikely to agree.  A court would be more likely to think
that libraries have enough leverage to negotiate over these matters since
publishers depend on libraries for most of their serials revenues.

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




On 2/16/14 7:35 PM, "LIBLICENSE" <[log in to unmask]> wrote:

>From: "Hamaker, Charles" <[log in to unmask]>
>Date: Fri, 14 Feb 2014 00:54:35 +0000
>
>The additional issue for licensed content is very often "only" the
>uses listed in the license are permitted, and text mining in my
>experience is not one of the "uses" permitted by most major license
>agreements. JSTOR as an example has a different and quite strenuous
>license agreement to be signed by someone (unclear who at a university
>would have the full power to do so). And publishers like Elsevier
>routinely disallow mention of fair use rights in their contracts.
>
>Chuck Hamaker
>________________________________________
>
>From: Marcin Wojnarski <[log in to unmask]>
>Date: Wed, 12 Feb 2014 23:17:19 +0100
>
>Professor Carroll,
>
>Thank you for this explanation, it is very insightful. May I ask you
>to elaborate on one of your statements? You say:
>
>"I doubt the courts would find that publisher demands on controlling
>text mining in their license agreements would run afoul of either of
>these rules." (the rules of copyright misuse or non-enforceable terms)
>
>Why do you think so?
>
>Text mining 'per se', when decoupled from a separate issue of gaining
>access to the copyrighted work, is - by your definition - just an
>"analysis of textual data" that "extract facts and ideas but not
>actual chunks of text". Thus, it is a way of using data from the work,
>not of using the actual work, and so it's not covered by copyright -
>just like the right to blog about an article and to post a negative
>review (as in your example) is not covered by copyright; or the right
>to use an invention described in the article (covered only by patent
>law, not copyright); or the right to share information from the
>article with a friend; or the right to write out facts from the
>article and put in an Excel spreadsheet, etc... - all these uses are
>not covered by copyright, provided only that I have the basic right:
>to read the article. Please correct me if I'm wrong.
>
>So, isn't it the case that publisher's demand to control text mining
>falls exactly under the definition of copyright misuse that you gave:
>"when a copyright owner uses the leverage of copyright to gain an
>agreement that gives it control over things not covered by copyright,
>this could be copyright misuse."?
>
>Thanks,
>Marcin