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Context/Background:

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.

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.

Obviously, there are legal considerations to be made before trying to publish these results.

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 "create derivative works from the content of the service". This is a significant obstacle that would prevent me from achieving my goal of publishing my results.

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.

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:

  1. The purpose and nature of the use is for noncommercial, nonprofit educational purposes. Specifically, the nature of the use is for research and scholarship.
  2. The nature of the use is fairly transformative, as I would be publishing the analyzed/summarized statistical data and not any of the raw content from the platform.
  3. To some extent, I guess that you could say the raw data represents facts, which are not protected by copyright laws.
  4. The appropriate attribution and acknowledgment would be provided to the company regarding the use of their data in the publication.
  5. Finally, I would not be harming the copyright owner's market or limiting their ability to exploit the original data for their own purposes.

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).

Question:

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?

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?

If not, what is the reason for withholding my intentions from the company?

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 and 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).

How should I play my cards here? What are the advantages/disadvantages of each option?

  • My first question would be whether and to what extent the data even enjoys copyright protection. I suppose that data about a person's athletic activities may not be a "literary work," even under the very broad definition of that term pertaining in US law. Furthermore, copyright in content comprising "activities uploaded and shared by these users" would originate with the users, not the platform, so the answer to that question depends a bit on the license agreement, if any, under which those users share their content. – phoog Aug 12 '20 at 19:01
  • @phoog That's a great question which, unfortunately, I don't know the answer to. If the data DON'T enjoy copyright protection, does that mean that a theoretical legal battle with this company would essentially fall back to being about their Terms of Service? – Undergraduate Student Aug 12 '20 at 19:12
  • I suppose so. That would presumably also be the case if the data does enjoy copyright protection and your use is allowable as fair use. I expect that someone else more knowledgeable about these things than am I will answer or comment. – phoog Aug 12 '20 at 19:18
  • Please note that this site can't offer you legal advice or evaluate for you the legal risks of your options. That is something that you should do with your institution's legal team (I assume you work for a university or similar institution). If the company disagrees with whatever you do, they may very well sue your university instead of (or in addition to) you personally. That is not great for your career. – Nate Eldredge Aug 12 '20 at 19:26
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    One concern is that AFAIK, fair use is only a defense to copyright infringement. The TOS, on the other hand, is a contract, and there's no fair use defense to breach of contract. It is perfectly possible to agree in a contract not to do something that copyright law would otherwise permit, and such a contract would be binding AFAIK. – Nate Eldredge Aug 12 '20 at 19:27
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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 "I did N pushups" column. The arrangement of data into a web page passes the smidgen of creativity test, but "210" is not a creative number.

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 "fair use", then they can't tell you that you can't use it. In case it turns out that "fair use" fails, the matter would hinge on what exactly the TOS says. They may have granted you permission to make use of their "information". So there are three positive avenues for you to consider: not protected, fair use, and permitted.

A practical difficulty is that a university lawyer is only interested in the interests of the university, and they are as likely to say "don't do that" or "get permission" as they are to say "that is fair use". You can hire a lawyer who is paid to care about your 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.

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    "The terms of service of a website cannot negate your right to use the website however you want in a non-infringing way": why not? – phoog Aug 12 '20 at 19:31
  • @phoog if you legally don't need a license to access the content, then no one can legally restrict that type of access. This seems more like semantics than law. – grovkin Aug 12 '20 at 19:49
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    @phoog that's a separate consideration. you are talking about the TOS on method of delivery of content. Which is not the same as the consideration of having the right to view the content. – grovkin Aug 12 '20 at 19:57
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    I think maybe we're disagreeing over the word "use". I agree that the TOS cannot make you liable for copyright infringement for use that would otherwise be fair use. But copyright infringement isn't the only way for them to get you. If such use is itself a violation of the TOS, then you're liable for violating the TOS, and for any damages that may result. – Nate Eldredge Aug 12 '20 at 20:30
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    @user6726 access to the site is consideration. – Dale M Aug 12 '20 at 20:50

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