What is fair use of 7TB? A presentation from a researcher's perspective about the challenges of using restricted data. Given at ACRL NE's Scholarly Communications Interest Group during the March 2015 program on "Open Access and Digital Scholarship." http://scig.acrlnec.org/content/march-2015-program-open-humanities-and-digital-scholarship-access-innovation-and-support

1. What is
fair use
of seven
terabytes?
Paul Fyfe

2. 1. The history of a problem

7. h-API-ness

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

25. 2. Big data, little access

26. • restricted or licensed use
• conventional fair use
• non-expressive or non-consumptive use
• transformative use

27. 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

31. “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

33. “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

34. “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.

36. Standardization
of English and
American
orthography,
circa 1800
Moving wall of
public domain /
copyrighted
materials, 1923

37. Public domain
is not the only problem.

41. “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

42. 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.

43. • 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”)

44. “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

45. • “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

46. 1. scrape data and discard junk
2. parse spaces, hyphens, breaks
3. export to MongoDB
4. run correction protocols
5. score automatically and with human
error checking
6. export into JSON, CSV, XML, or formats
ready for queries or visualization
7. begin research

49. 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

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

51. “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/

55. 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/

57. 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)