Content-Mining Elsevier’s TDM; Why researchers and libraries should think very carefully and then not sign (1)

Elsevier have posted their terms and conditions for content-mining (TDM). See (I think you can only see the agreement if your institution subscribes). I don’t know whether I am allowed to post the TaC without permission but I am assuming fair use and public interest (neither of which actually exist).

I shall take this in two parts: (1) why you should not sign this agreement without consulting a lawyer and your institution and (2) what trouble you might get into. For (1) I will only use the head of the document.




The key point is that this is a legal agreement. It binds you to adhere to the conditions in the document. If you do not you may be sued. This is independent of what your motive was. If you break the agreement you may be sued.

But surely Elsevier won’t sue ordinary researchers?

When ordinary researchers in the University of California posted their research articles, Elsevier sent the lawyers in. . Read this carefully – it’s complicated but nowhere near as complicated as the TDM agreement. If the complications worry you, then the TDM argument will worry you.

And surely Text and Data Mining for no reward isn’t really a crime?

Ask the friends of who downloaded Jstore content to carry out TDM. From Wikipedia:

On January 6, 2011, Swartz was arrested by MIT police on state breaking-and-entering charges, after systematically downloading academic journal articles from JSTOR.[10][11] Federal prosecutors later charged him with two counts of wire fraud and 11 violations of the Computer Fraud and Abuse Act,[12] carrying a cumulative maximum penalty of $1 million in fines, 35 years in prison, asset forfeiture, restitution and supervised release.[13]

That is not a misprint. It really was THIRTY-FIVE YEARS IN PRISON. As I expect you know Aaron died last year.

But surely MIT would come to his support?

The Swartz family don’t think so:

Aaron’s death is not simply a personal tragedy, it is the product of a criminal justice system rife with intimidation and prosecutorial overreach. Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death.

Statement by family and partner of Aaron Swartz[108]

I have no informed comment.

So the bottom line is that if you get it wrong in the eyes of Elsevier you may be sued. You may win. Your University might support you. Or it might not… especially since:


” You confirm that You have the right and authority to enter into this Agreement”

Do you? I doubt it very much. The contractor to Elsevier for the subscription is the University, not you. Unless they give you the right to sign this licence then you are acting without their authority. I am not a lawyer, but at present I would not do this without getting my university to indemnify me.

If you foul up, then you might get sued, and/or the University would get sued. If the University had not agreed that you could do this they might also take action against you.

BTW – I suspect that, so far, every other TDM agreement with every other publisher will be just as problematic.

In (2) I shall look at some of the clauses and why they expressly prevent me signing up for this.

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