united-states fair-use data-ownership research
Should I inform the copyright holder that I plan to invoke the fair use doctrine if they decide to pursue legal action against me?
<h2><strong>Context/Background:</strong></h2>
<p>I'm currently trying to navigate the legal intricacies of using content from a company whose platform revolves around athletic/sports data. For anyone who might be familiar, this company is a large social network (based in the United States) with millions of users who post their workouts and athletic activities online for others to see. It is essentially a social network for runners/cyclists/athletes, and the posted content consists of activities uploaded and shared by these users.</p>
<p>I am an academic researcher with an interest in sports statistics. While reviewing the content on this social media platform, I discovered some interesting results that I'd like to turn into an academic/journal publication. Essentially, I performed some statistical analysis on some of the platform's data (which is visible and accessible by anyone with an account on the platform) and came to some meaningful conclusions, which I'd now like to publish as a paper.</p>
<p>Obviously, there are legal considerations to be made before trying to publish these results.</p>
<p>Above all, the company has a Terms of Service that I agreed to in order to use the platform. The Terms of Service explicitly state that I may not &quot;create derivative works from the content of the service&quot;. This is a significant obstacle that would prevent me from achieving my goal of publishing my results.</p>
<p>I reached out to the legal team at this company asking for an exemption to this clause for the purpose of my academic research. In return, I received a fairly generic response that all users of the platform are bound to the Terms of Service and must abide by them (which is fair, but already known). I have since followed up with the company to explain my objectives in more detail; I am currently awaiting a response to my e-mail.</p>
<p>In the meanwhile, I was considering other approaches to publishing this work and did some research into how fair use doctrine might support my case here. I think there are a few points that I have in my favor here:</p>
<ol>
<li>The purpose and nature of the use is for noncommercial, nonprofit educational purposes. Specifically, the nature of the use is for research and scholarship.</li>
<li>The nature of the use is fairly <em>transformative</em>, as I would be publishing the analyzed/summarized statistical data and not any of the raw content from the platform.</li>
<li>To some extent, I guess that you could say the raw data represents facts, which are not protected by copyright laws.</li>
<li>The appropriate attribution and acknowledgment would be provided to the company regarding the use of their data in the publication.</li>
<li>Finally, I would not be harming the copyright owner's market or limiting their ability to exploit the original data for their own purposes.</li>
</ol>
<p>These are all points that I could pitch to support my argument. I'm not sure if the fair use doctrine would, in this case, supersede the relevance of the company's Terms of Service. For the purpose of this question, let's assume that the argument I've posed above is reasonable (although please feel free to leave a comment if there are notable flaws in my reasoning).</p>
<h2><strong>Question:</strong></h2>
<p><em>Should I inform the copyright holder (i.e. the company and its legal team) that I would intend to invoke the fair use doctrine if they were to pursue legal action against me?</em></p>
<p>If so, to what extent should I detail my argument—should I simply let them know that I would invoke fair use in my defense, or should I go even further and explain my arguments for each of the four factors for fair use consideration?</p>
<p>If not, what is the reason for withholding my intentions from the company?</p>
<p>On one hand, I believe that expressing my intent to invoke fair use might make them concede to my request (both because it may be perceived as grounded in legal doctrine <em>and</em> because they'll realize that I am not willing to back down without a fight). On the other hand, I worry that giving them too much information upfront might end up working against me if I end up in a legal battle against the company (which is not something I want to do unless there's a very strong chance that I'd win).</p>
<p>How should I play my cards here? What are the advantages/disadvantages of each option?</p>

<p>We cannot dispense personalized legal advice: that is what your attorney is for. However, I agree with your analysis that this is most likely covered by fair use, and indeed it is not obvious that you have taken anything that is protected. There is no creativity behind a number such as entries in the &quot;I did N pushups&quot; column. The arrangement of data into a web page passes the smidgen of creativity test, but &quot;210&quot; is not a creative number.</p>
<p>The terms of service of a website cannot negate your right to use the website however you want in a non-infringing way. If your use is &quot;fair use&quot;, then they can't tell you that you can't use it. In case it turns out that &quot;fair use&quot; fails, the matter would hinge on what exactly the TOS says. They may have granted you permission to make use of their &quot;information&quot;. So there are three positive avenues for you to consider: not protected, fair use, and permitted.</p>
<p>A practical difficulty is that a university lawyer is only interested in the interests of the university, and they are as likely to say &quot;don't do that&quot; or &quot;get permission&quot; as they are to say &quot;that is fair use&quot;. You can hire a lawyer who is paid to care about <em>your</em> interest, though there is never a guarantee that the lawyer's advice is correct. I think it is likely that the lawyer will tell you to not say anything until legally forced to, given the apparent rebuff of your request for special permission.</p>
