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

--
Joseph J. Esposito
Processed Media
[log in to unmask]
@josephjesposito
+Joseph Esposito