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


On 02/12/2014 01:03 AM, LIBLICENSE wrote:
>
> 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