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LIBLICENSE-L  February 2014

LIBLICENSE-L February 2014

Subject:

Re: Who should control text mining rights?

From:

LIBLICENSE <[log in to unmask]>

Reply-To:

LibLicense-L Discussion Forum <[log in to unmask]>

Date:

Tue, 11 Feb 2014 19:03:35 -0500

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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
>
> ---------- Forwarded message ----------
> From: LIBLICENSE <[log in to unmask]>
> Date: Wed, Feb 5, 2014 at 7:54 PM
> Subject: Re: Who should control text mining rights?
> To: [log in to unmask]
>
> From: Michael Carroll <[log in to unmask]>
> Date: Wed, 5 Feb 2014 09:08:32 -0500
>
> Just so everyone is clear, in the United States text mining is a user's
> right not a copyright owner's right.  When a library signs an agreement
> denying users the right to bulk download for the purpose of text mining,
> the library is giving up a user's right in exchange for access to the
> publisher's database of articles.  I understand that this may be part of
> the price for access, but you should at least get a discount since you're
> being asked to give up some legal rights as well as money in exchange
> for access.  In Europe, the legal situation is more complicated because
> of database rights and the absence of fair use.
>
> Here's the quick explanation.  If by "text mining" we mean computational
> analysis of textual data that results in durable outputs that extract
> facts and ideas but not actual chunks of text, then there are two ways
> to go about it.  Because computers have to make copies to function,
> temporary copies are made in the computer's random access memory
> while the processing is going on.  In the US, the user has the right to
> make these copies.  Why?
>
> The copyright owner owns the exclusive right to reproduces the
> copyrighted work "in copies or phonorecords."  A "copy" is a defined
> term thaT requires that the copy be "fixed" in a tangible medium.  The
> courts have agreed that digital data residing on a hard drive is "fixed."
> But, for a work to be fixed it must be capable of being "perceived,
> reproduced or otherwise communicated" for a period of "more than
> transitory duration."

> The Second Circuit Court of Appeals has ruled that a buffer copy lasting
> only 1.2 seconds was not "fixed" because that is a transitory period.
> Therefore, the temporary copy is not a "copy" under copyright law and
> therefore users rather than copyright owners have the right to make such
> temporary copies.
>
> (I know that's more complicated than it should be, and it's why we
> lawyers often put words in quotes to signal that a word may have a
> specific legal meaning rather than its plain ordinary meaning.)
>
> So if your users just want to run the analysis off of the copies stored
> on the library's or publisher's hard drive, no copying is taking place as
> far as copyright law is concerned.
>
> However, most researchers also want to keep a reference copy of all of
> the text.  Can they?  Yes, if they are not making these copies publicly
> available.  Making these copies for the purpose of serving as a
> referencE to back up research results is a transformative use that does
> not harm the copyright owner's economic rights in the works and is
> therefore a fair use.  I've been saying this for some time, but it's nice
> that the same court of appeals essentially came to the same conclusion
> in the Google Books case.
>
> So, Elsevier may have the rights to control text mining in some European
> countries, but this announcement still means that in the US Elsevier
> wants to control computational research in ways that go beyond its rights
> as a copyright owner.
>
> 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

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