From: Sally Morris <[log in to unmask]>
Date: Thu, 13 Feb 2014 10:07:56 +0000

Surely you cannot buy an online resource - you have no option but to
purchase a license for its use.

Sally

Sally Morris
Email:  [log in to unmask]

-----Original Message-----

From: Michael Carroll <[log in to unmask]>
Date: Tue, 11 Feb 2014 09:38:34 -0500

Hi Jim,

   I can engage on this one but can't promise that I can keep up a running
dialog.

   On the first point, in general I would agree that purchasing gives you
more ability to use the resource than licensing it, but this all depends on
the terms of the license agreement.  The main point is that copyright law
supplies the default terms of use for original works of authorship - such as
books and journal articles.  Under these terms, many uses of the work are
subject to the copyright owner's exclusive rights, but a number of others
are user's rights, including fair use.

   The copyright owner and the user can change these default terms through a
license. The suite of Creative Commons licenses all change the terms in the
user's favor to varying degrees.  In contrast, if a user agrees not to make
a fair use of a work in exchange for access, the courts will enforce that
agreement.  So if a license agreement demands that the user give up rights
she would otherwise have under copyright law, then the purchase is better
than a license.  (The courts have so far refused to enforce publisher
attempts at post-sale restrictions.  For example, when a publisher sends me
a textbook with a sticker that says "for purposes of review only," I can
safely ignore that restriction and resell the book if I so choose.  Many
buyers come to the school asking me to do just that.  I don't because I
don't think it's ethical, but it would be legal.)

    There are two limits on license agreements to keep in mind.  One is that
contract law has its own limits on what kinds of agreements are enforceable.
A software publisher gave journalists software to test under a license
agreement that said that in exchange for getting early access to the
software, the journalist agreed not to publish a negative review.  One
journalist ignored this term and published a negative review, the publisher
sued (chutzpah, I know, but this was in New York), and the court dismissed
the case holding that the term of the agreement was not enforceable.

     The other rule is copyright misuse.  In the US, this is not a very well
developed rule, but in Europe the concept of "abuse of right" is better
established.  In either case, 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.  See
http://digital-law-online.info/lpdi1.0/treatise15.html

    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.

    On the question of whether archiving a publisher's database of articles
would be a fair use, it's important to articulate the purpose for doing so.
In the text mining example, archiving a reference copy of the database is
necessary to make the text mining research results reproducible since the
database of articles changes over time.  So, my analysis was based on
keeping a private copy for that purpose.  You've changed the purpose when
you want to essentially keep a cached copy to guarantee access.  It's
possible that doing so is a fair use, but it's a closer question and we'd
need more facts. A federal trial court held that when Google makes cached
copies of web sites, it is making a fair use.
This isn't a binding precedent, but that would be an analogy.

    The Google Books decision provides support because Google created a
digital archive of publisher's works for the purpose of making them
searchable (and to enable text mining).  The court held that Google's
creation of this archive and its continued retention of it was necessary to
the beneficial purposes of providing search and text mining.  Google's
keeping the archive after it created its index did not effect the
publishers' economic interests in exploiting the copyrighted works and
therefore is a fair use.  Although the purpose of the text mining researcher
and Google are somewhat different, they both can articulate a socially
beneficial reason for keeping a private archived copy of the publishers'
works and their doing so does not interfere with the publishers' ability to
economically exploit the works.

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


On 2/10/14 8:52 PM, "LIBLICENSE" <[log in to unmask]> wrote:

>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