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