From: "Hamaker, Charles" <[log in to unmask]> Date: Fri, 14 Feb 2014 00:54:35 +0000 The additional issue for licensed content is very often "only" the uses listed in the license are permitted, and text mining in my experience is not one of the "uses" permitted by most major license agreements. JSTOR as an example has a different and quite strenuous license agreement to be signed by someone (unclear who at a university would have the full power to do so). And publishers like Elsevier routinely disallow mention of fair use rights in their contracts. Chuck Hamaker ________________________________________ 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