Building off of the amicus brief filed by Matthew Jockers, et al. in Authors Guild vs. Google, Mark Sample (George Mason University) has written a provocative post urging digital humanists to think critically about what it means to frame non-consumptive use–text-mining, topic modeling, etc.–as “non-expressive.” As the brief’s abstract explains:
The brief argues that, just as copyright law has long recognized the distinction between protection for an author’s original expression (e.g., the narrative prose describing the plot) and the public’s right to access the facts and ideas contained within that expression (e.g., a list of characters or the places they visit), the law must also recognize the distinction between copying books for expressive purposes (e.g., reading) and nonexpressive purposes, such as extracting metadata and conducting macroanalyses.
Sample wants scholars to go futher, arguing that the future of digital scholarship is dependent on the expressive use of such research:
Scholars and students of art, literature, history, and culture ought to transform more of our non-consumptive research into expressive objects. Nonexpressive use of texts is a dead-end for the humanities. A computer model surrounded by a wall of explanatory words is not enough. Make the computer model itself an expressive object. Turn your data into a story, into a game, into art. Call it aesthetic empiricism or empirical aesthetics. Call it whatever you want. But without a poetics of machine reading, there is nothing.
Incidentally, the Authors Guild have appealed the 2012 decision ruling in favor of non-consumptive use, and the authors of the original amicus brief have issued an appeal for support in drafting a new brief to be submitted to the Appeals Court.