From: Joseph Esposito <[log in to unmask]>
Date: Thu, 21 Jul 2016 21:16:34 -0400

I would like to thank the many people who responded to my initial
query online and off.

Joe Esposito

On Thu, Jul 21, 2016 at 9:02 PM, LIBLICENSE <[log in to unmask]> wrote:
>
> From: Winston Tabb <[log in to unmask]>
> Date: Fri, 22 Jul 2016 00:31:14 +0000
>
> This is yet another reminder that we should always attempt to include
> a provision in our licenses that nothing in them overrides provisions
> of copyright law.
>
> Sent from my iPhone
>
> > On Jul 21, 2016, at 6:28 PM, LIBLICENSE <[log in to unmask]> wrote:
> >
> > From: kalev leetaru <[log in to unmask]>
> > Date: Wed, 20 Jul 2016 21:32:55 -0400
> >
> > One very critical distinction here that is often missed by academic
> > data miners at universities is that in most cases of TDM you are
> > looking at two very different classes of restrictions in the form of
> > copyright and license. Copyright may or may not play a role depending
> > on what you are doing and to what degree humans play a role (most
> > TDM's like HathiTrust Research Center are erring towards the total
> > exclusion of any possibility of a human consuming any copyrighted
> > content, placing a firewall around the content such that only machines
> > can access it).
> >
> > Yet, the far bigger issue is licensing. Take a digitized historical
> > collection of newspapers from the 1800's that your library subscribes
> > to. Regardless of your personal views on copyright claims to digitized
> > imagery of public domain content (and more importantly, the views of
> > courts in your particular jurisdiction), the bottom line is that when
> > you access those images, you are doing so through a license agreement
> > your library signed that governs your access to that content. If you
> > have your university counsel take a deep read through those agreements
> > you'll find that most publishers place explicit restrictions on data
> > mining of their content, either specifically on mining or on direct
> > and indirect access modalities to the content. Most universities are
> > not currently trying to negotiate mining access as part of their
> > license agreements and I always advise libraries to at least explore
> > this with their publisher. Without saying more than I can in a public
> > form, a good number of the large publishers are going to be making
> > announcements around new or expanded data mining programs in the
> > not-so-distant future (some of them in the next 12 months). Many of
> > these will come in the form of an add-on that must be purchased by the
> > library, but will grant data mining privileges to the content and
> > provide mechanisms, such as cloud-based computing facilities and
> > special APIs, to permit legal authorized large-scale data mining.
> >
> > Re #2, in the US the closest parallel is the illegal downloading of
> > copyrighted music and movies. As the saying goes, just because someone
> > else robbed the store, doesn't mean the merchandise is clean. Under US
> > copyright law, the courts have generally held that downloading a
> > copyrighted piece of content without authorization from the copyright
> > holder is illegal. In particular, the process of downloading that file
> > from a server to your local harddrive creates a copy of the work,
> > which constitutes illegal duplication. In the case of SciHub, the
> > simple act of downloading a PDF from that website to your computer
> > typically constitutes infringement in the eyes of the US legal system
> > under US copyright law. I can't speak to the EU legal system, since
> > I'm not as familiar with its nuances, but I would assume you would
> > largely see similar interpretations given various reciprocity of
> > copyright laws.
> >
> > ~Kalev
> >
> >
> >> On Wed, Jul 20, 2016 at 8:12 PM, LIBLICENSE <[log in to unmask]> wrote:
> >>
> >> From: "Peter B. Hirtle" <[log in to unmask]>
> >> Date: Wed, 20 Jul 2016 14:00:33 +0000
> >>
> >> Joe, on question #1, I am not aware of any court cases that have yet tested TDM.
> >>
> >> Perhaps the closest are the Google Books/HathiTrust cases that make it
> >> clear that when you are not using the expressive content of a work,
> >> there is no infringement.  The arguments are well laid-out in Jockers,
> >> Matthew L. and Sag, Matthew and Schultz, Jason, Brief of Digital
> >> Humanities and Law Scholars as Amici Curiae in Support of
> >> Defendant-Appellees and Affirmance, (The Authors Guild, Inc., et al.,
> >> v. Google, Inc., et al.) (Second Circuit) (July 10, 2014).
> >>
> >> Available at SSRN: http://ssrn.com/abstract=2465413 or
> >> http://dx.doi.org/10.2139/ssrn.2465413.  I can also recommend Matthew
> >> Sag, Orphan Works As Grist for the Data Mill, 27 Berkeley Tech. L.J.
> >> (2012).
> >>
> >> Available at: http://scholarship.law.berkeley.edu/btlj/vol27/iss3/9 or
> >> http://dx.doi.org/doi:10.15779/Z387M5B.
> >>
> >> Your second question is a little harder.  While some argued during the
> >> Napster cases that "there is no legal restriction on downloading that
> >> content," I think that is far from established.  I suspect that the
> >> opposite is likely to be the case now - but I haven't been tracking
> >> the cases (primarily with regards to audio and videos) to speak to
> >> this.
> >>
> >> Peter B. Hirtle
> >> Affiliate Fellow, Berkman Klein Center for Internet & Society, Harvard
> >> University
> >> [log in to unmask]
> >> [log in to unmask]
> >> [log in to unmask]
> >> http://vivo.cornell.edu/display/individual23436
> >> Copyright and Cultural Institutions: Guidelines for Digitization for
> >> U.S. Libraries, Archives, and Museums:
> >> http://hdl.handle.net/1813/14142
> >>
> >>
> >> -----Original Message-----
> >> From: Joseph Esposito <[log in to unmask]>
> >> Date: Sat, 16 Jul 2016 15:08:15 -0400
> >>
> >> I was puzzling over some of the copyright issues concerning text and
> >> data mining (TDM) this week and wonder if anyone on this list can
> >> offer some guidance. Basically, I have two questions:
> >>
> >> 1.  My understanding is that there is a growing body of court rulings
> >> to the effect that TDM is not protected by copyright. That is,
> >> machines/robots/spiders can mine full-text databases without
> >> triggering a copyright claim. Are there any summary articles/blog
> >> posts that lay out the current view of this?
> >>
> >> 2.  Related to this is a question that came up concerning SciHub and
> >> other sites that reproduce scholarly content. While it may be a breach
> >> of contract or illegal to upload content to SciHub and its brethren,
> >> and it may be illegal for SciHub to display that content, there is no
> >> legal restriction on downloading that content. The downloader, on the
> >> other hand, cannot redisplay that content. If this is true, could a
> >> TDM robot download articles from SciHub (or, for that matter, from
> >> ResearchGate or Academia.edu) with impunity?
> >>
> >> Can anybody help me here?
> >>
> >> Joe Esposito