What is fair use of seven

terabytes?

Paul Fyfe

1. The history of a problem

h-API-ness

* Please see your own copyright librarian or library counsel before engaging with this or any other strenuous scholarly communications program.

2. Big data, little access

• restricted or licensed use

• conventional fair use

• non-expressive or non-consumptive use

• transformative use

Fair Use

• Copyright Act of 1976• Statutory factors in determining “fair use”– purpose and character– what are you using– "amount and substantiality"–market harm

“Fair Use FAQ.” Copyright and Digital Scholarship Center, NCSU Libraries. Accessed 2015. Web. http://www.lib.ncsu.edu/cdsc/resources/faqs/fairuse

“the digitization of books for text-mining purposes is […] to be regarded as fair use as long as the end product is also nonexpressive or otherwise non-infringing”Jockers, Matthew L., Matthew Sag, and Jason Schultz. Brief of Digital Humanities and Law Scholars as Amici Curiae in Authors Guild v. Google. Rochester, NY: Social Science Research Network, 2012. papers.ssrn.com. Web. 25 Feb. 2015. http://papers.ssrn.com/abstract=2102542

“library digitization for the purpose of text mining and similar non-expressive uses present no legally cognizable conflict” Jockers, Matthew L., Matthew Sag, and Jason Schultz. Brief of Digital Humanities and Law Scholars as Amici Curiae in Authors Guild v. Hathitrust. Rochester, NY: Social Science Research Network, 2013. papers.ssrn.com. Web. http://papers.ssrn.com/abstract=2274832

“non-consumptive research paradigm”

HathiTrust Research Center http://www.hathitrust.org/htrc

“Non-consumptive research is defined in the settlement as: ‘ …research in which computational analysis is performed on one or more Books, but not research in which a researcher reads or displays substantial portions of a Book to understand the intellectual content presented within the Book’” Unsworth, John. “Computational Work with Very Large Text Collections.” Journal of the Text Encoding Initiative Issue 1 (2011): n. pag. jtei.revues.org. Web. http://jtei.revues.org/215

“Today’s digital-minded literary scholar is shackled in time; we are all, or are all soon to become, nineteenth centuryists.”Jockers, Matthew. Macroanalysis: Methods for Digital Literary History. University of Illinois Press, 2013. 173.

Standardization of English

and American orthography,

circa 1800

Moving wall of public

domain / copyrighted materials,

1923

LONG NINETEENTH CENTURY FTW

Public domain is not the only problem.

“The solution to the problem of heterogeneous access to licensed material is not scalable”

Unsworth, John. “Computational Work with Very Large Text Collections.” Journal of the Text Encoding Initiative Issue 1 (2011): n. pag. jtei.revues.org. Web. http://jtei.revues.org/215

Fair use of seven

terabytes

VARIETIES.Time is like a creditor, who allows an ample space to make up accounts, but is inexorable at last.—Time is like a verb that can only be used in the present tense.—Time well employed, gives that health and vigour to the soul which rest and retirement afford to the body.—Time never sits heavily on us, but when it is badly employed.—Time is a grateful friend; use it well, and it never fails to make a suitable requital.

Berrow’s Worcester Journal. 3 January 1822, p4.

• does the use affect the provider’s ability to commercialize, or substitute for the original

• do they actually care / does it really make an impact (“de minimis”)

“Campbell [v. Acuff-Rose Music]’s most enduring contribution to fair use jurisprudence has been its emphatic embrace of the ‘transformative use’ paradigm”

Butler, Brandon. “Transformative Teaching and Educational Fair Use after Georgia State.” Rochester, NY: Social Science Research Network, 2015. papers.ssrn.com. Web. (forthcoming in Connecticut Law Review) http://papers.ssrn.com/abstract=2568936

• “courts have shown deference to uses successfully characterized as ‘transformative’”

BUT • “education, has been mired for years in a

minimalist, market-based vision of fair use that is largely out of touch with mainstream fair use jurisprudence”

Butler, “Transformative Teaching and Educational Fair Use,” 2, 1

1. scrape data and discard junk2. parse spaces, hyphens, breaks3. export to MongoDB4. run correction protocols 5. score automatically and with human

error checking6. export into JSON, CSV, XML, or

formats ready for queries or visualization

7. begin research

Manovich, Lev. “On Broadway - a new interactive urban data visualization from Selfiecity team.” Software Studies Initiative, MIT. March 2, 2015. Web. http://lab.softwarestudies.com/2015/03/on-broadway-new-interactive-urban-data.html

Manovich, Lev, et al. “Imageplots.” Selfiecity, 2015. Web. http://selfiecity.net/

“Let’s turn our non-consumptive use of digitized works into expressive use of digitized works.” Sample, Mark. “The Poetics of Non-Consumptive Reading.” SAMPLE REALITY. N.p., 22 May 2013. Web. http://www.samplereality.com/2013/05/22/the-poetics-of-non-consumptive-reading/

Bruzek, Alison. “Blend Up the Internet and Everything Turns Orange.” The Atlantic August 20, 2014. Web. http://www.theatlantic.com/technology/archive/2014/08/the-color-of-every-photo-on-the-internet-blended-together-is-orange/378614/

fair use is “an analytical tool that focuses on social and cultural patterns.”

Michael Madison, “A Pattern-Oriented Approach to Fair Use,” William & Mary Law Review 45 (2004)