The Thirteenth Amendment argument is basically frivolous. Still, the copyright infringement argument is interesting, though I think ultimately a loser. Turnitin.com is a commercial service that aims to help educators catch plagiarism in student papers. Schools require that student papers be submitted to the site, which (1) checks each student paper against its database, and (2) adds each student paper to its database so that future papers can be checked against it. I take it that the database already contains papers from commercial term paper mills, encyclopedia entries, and the like; but adding student papers helps spot students who are copying from classmates, or from friends at other schools, as well as students who are copying from publicly available sources.
But, the high school student plaintiffs say, step 2 violates our copyright: You folks are making money by copying our papers onto your servers. The consent you get from us is inadequate because we are coerced to give it (especially plausible, I take it, when the students are students at public high schools, and when they are within the compulsory school attendance age range). And your use is not fair use, chiefly because it's commercial. (Here's turnitin.com's legal analysis, which argues that the use is indeed fair.)
Turnitin.com's strongest fair use argument (which would be needed if the court concludes that the student did not voluntarily consent to the use of their works) is that though their use is commercial, it is
transformative — it copies the papers not to use them as papers (as opposed to, say, a Napster user, who copies a song to play it as a song), but rather to use them to check other papers for plagiarism --
is in aid of others' nonprofit educational mission, and
does not interfere with the students' market for their own works, since the students' works are worthless, and in any event if they are worth something (say, because the students can sell them as newspaper op-eds or articles in literary magazines), Turnitin's archiving of the papers wouldn't interfere with that value.
The students' strongest response would essentially be that if Turnitin is making money from the students' works, the students are entitled to a share of that, and Turnitin's using the works for free interferes with the students' ability to license their papers to Turnitin itself. The most familiar analogy here would be if Steven Spielberg decides to make a movie out of your novel. It may well be that the movie won't interfere with the value of your novel — it may even increase your sales — but his making the movie without paying you interferes with your right to license movie rights to the novel. (Some condemn this as circular reasoning, but I don't think that's quite right, and in any event it is precisely the reasoning that lets authors profit from selling movie rights to their books, and that bars moviemakers from just using the books for free and claiming fair use.) If anything, the students would say, our case is even stronger because our works are unpublished, and the unpublished status of a work is generally seen as cutting in favor of the work's owner and against the fair use claims of the user.
I'm pretty sure Turnitin would and should win, because (1) the value of the licensing rights in their papers would in any case be next to nil, (2) Turnitin's use is transformative — in the sense that it uses the original to make something that's very different (much as a parody or a photo search engine that presents thumbnails of others' photos is transformative, though not quite in the same way) — and therefore is not within the authors' legitimate licensing rights (cf. the Supreme Court's holding that "there is no protectible derivative market for criticism"), and (3) the unpublished status of plaintiff's work should only matter when the defendant is trying to publish the work (or a version of the work), which it isn't doing. Still, it's an interesting little copyright question.
Related Posts (on one page):
- High School Students' Copyright Lawsuit Against Anti-Plagiarism Site Rejected:
- High School Students Sue Anti-Plagiarism Site for Copyright Infringement (and Thirteenth Amendment Violation):
I find it odd that turnitin basically claims to detect cases of copyright infringement, which the author doesn't mind, by infringing the same copyright, which the author does mind. (I know it claims to detect plagiarism, but it's really detecting rote copying, which is also a copyright issue.)
That actually might be a good way to shut these kids up. The company could agree to settle by acknowledging the source of all plagiarized papers and notifying the school where the paper came from. Perhaps even send the student, through the school, a copyright application, so the kid could register the publication with the library of congress.
Um, no, not really. Parody actually transforms the work. As in, alters it. iParadigm isn't transforming the work at all, in fact, to use it properly they have to not make changes in it, because they're looking for copies.
OTOH, I think this is a fair use, on the same basis as internet search engines are. iParadigm is basicly just doing a search and compare function.
This is what I thought as well. After all Google is archiving a ton of copyrighted works and making money off of that archive (by creating pagerank, etc). And that destroys the market for licing the works to Google for use as a search engine. Is Google infringing?
I don't think this argument flies. If I have a term paper that I (a) did not plagiarize, and (b) never gave to anyone else to plagiarize, and (c) never published, then there is no way in that Turnitin is making any money from my paper.
That is, the system will be just as accurate with my paper in it, as without.
The only way my paper would increase the value of Turnitin's services, and allow Turnitin to "make money from [my] works" is if I either plagiarized it, or gave it to others to plagiarize.
JFT:I think that what they're doing is squarely fair use, but I think your comments miss the focus of the copyright claim. I'm not sure what you mean by how much of the paper Turnitin is "using"; Turnitin is copying the entire paper. They put it in their database.
You're missing a step in their business model. When a teacher submits paper X to Turnitin, it is compared against existing papers A, B, C,... W in their database. If X matches, they notify the teacher of the plagiarism. If X doesn't match, they tell the teacher and then add X to their database. It's that last step that's the copyright infringement (modulo fair use) by Turnitin.
As for your last paragraph, I don't understand. It isn't people who have been caught cheating who are suing.
This will surely reveal my ignorance of copyright law -- an area that I seldom practice in -- but there seems to be a massive disconnect between this assertion and the book/movie example. If the definition of "transformative" is "to make something that's very different" and "thumbnails of others' photos" is an example of a sufficient "transformation," how can a movie version of a book not also a transformation? By any measure, a move is "very different" from a book, both in forms of presentation and in terms of substance (among other things, movies inevitable change and omit details). A thumbnail of a photo, by contrast, at most effects a change in presentation, and a very modest one at that (makes the original smaller and potentially less detailed).
There must be some element missing from Professor Volokh's explanation. Would he or another knowledgeable type please comment on it?
Thanks much.
Also, the second point doesn't really help either, IMHO. Generally, you can't hide behind another party's fair use. For instance, there was a company that ripped user's DVDs and stored them in an iPod. This would clearly be fair use by the user, but was found to not be fair use by the company.
I'm sure there's an argument or precedent deflating my point here, but I'd like to see it. Anyone know if a court or law review article/blog post has specifically addressed this point?
Yes, that was my first thought too as to the diminishment in value of student papers after they have been archived by turnitin. But is that market of websites that sell term papers a "legitimate" one that courts will recognize and protect? Maybe those sellers of term papers, who piously admonish buyers that they should not engage in plagiarism and it may be illegal to do so, are like those who would ask courts to enforce gambling debts owed them and get told that courts will not enforce such contracts.
Should it matter that turnitin, like the re-sellers of term papers, is a for-profit enterprise? Would the legal analysis be any different if it were a non-profit effort by a consortium of schools whose purpose, in keeping with their academicmission, was to discourage plagiarism?
The Ps argue that they did not consent free of coercion to the archiving of their papers, that they were forced into contracts of adhesion. How about those attestations to the effect that "I have neither cheated, nor helped anyone else to cheat" that some schools require the student make when handing in a paper or test? Are they coerced "consents" too? If schools can require such attestations, wouldn't it be inconsistent with the student's representation to sell a term paper to one of those re-sellers, who exist only because there are other students who would buy term papers to turn in as their own. Isn't there at least a whiff of "fraud" in this, especially if students made that attestation up front that they weren't cheating or helping others to cheat, and shouldn't schools be allowable to turn to companies like turnitin to help them make sure the I-haven't-cheated pledge is being honored?
Is there the makings of a line of defense for b>turnitin in the above, in addition to the defenses more directly related to copyright issues/questions, especially if prospectively they incorporate a "no cheating" pledge for students to make when submitting papers?
If this is true, could it be argued it is the school who owns all rights for work submitted to the teachers? Thus they are free to do with papers what they please, once the papers are submitted.
I think it's a fair use of the material. The public resellers of papers might have a better claim of infringement.
I don't think the concept of "fair use" even arises, since that only applies when the "use" is of the replication sort--then the question becomes whether the particular replication is a "fair" one; here, there is no replication at all, but only a reading of what has been submitted, and a comparison of what is read to something else. Are the students saying there is no right to read what is submitted? It seems to me to reduce to that.
B. What if the "papers" were actually computer class programs in code? Or short stories for a creative writing class? And if the analysis is any different, then why give computer code or fiction more protection than essays?
C. While I may agree with PV regarding what the outcome "should" be, this is because of the policy concerns involved. However, those same policy concerns would also cut against the abuse of copyright and patent claims being made by corporate owners of "intellectual property". Just because the money involved is greater, the underlying policy should not be different. It seems to me that the students are merely asserting rights that have been blessed in a corporate setting, e.g. how does providing the owner of a copyright (as opposed to the creator) protection for 75 years past the death of the creator promote creativity? What it promotes are business plans centered around the assertion of monopolistic control of technologies.
D. Of course, I digress. Except that the students argument is actually more "honest" than the corporate "holder" argument.
Well they are replicating it to put on their hard drive, and to what extent they are making a single copy it’s only because of the technology involved. I don't know whether that would qualify as "use," but it’s stretching to say they aren't replicating the materials at all.
My first thought was also who is funding this lawsuit. I wonder if the ultimate funds are coming from one of those companies that advertise in the back of magaziones that they will sell you a term paper.
My second thought is that on the first day of law school the professor in the first class should begin by saying: "If it doesn't actually involve enslaving people, don't assert a Thirteenth Amendment claim, because it just makes you look stupid."
Side question: if a student were falsely accused of plagerism by turninit, would he have grounds to sue for libel? The student would probably be a private figure, so he should just need to show the accusation was false, harmful, and likely to be believed. Even if for some reason he was ruled to be a limited purpose public figure, he might still be able to show reckless disregard if the accusation was the result of a known flaw in turnitin's methods (for example, the slashdot discussion claims that turnitin has a very high false positive rate on papers about Milton because Milton's been analysed to the point where there's a high likelyhood of coincidental similaries between independant papers).
JFT appreciates that "It isn't people who have been caught cheating who are suing." His point is, if I understand, that they might be discovered as "enablers" of cheaters, and hence arguably "cheaters" themselves. (Granted, those selling their papers to a reseller of them face a much lesser risk from discovery than the student claiming as his/her own the original author's work, but still they might not like to be exposed.) My suggested I-have-not-cheated-or-helped-anyone-to-cheat pledge could inculpate students who sell term papers for resale by others and undercut their objection to what they claim is coerced consent.
Consider book reviews: quoting from a book for the purpose of review is classic fair use. Now, a bad review (heck, let's make it directly analogous: a review which accused the author of plagiarism) might well destroy the value of the book -- but that wouldn't change whether the quoting was fair use.
This is analogous: Turnitin doesn't destroy the value of the paper by convincing people to buy the paper from Turnitin instead; it destroys the value of the paper by telling people that it's not worth buying.
If the value of the paper is nil, then presumably the value to turnitin.com is also nil. Obviously, the paper does have some value to turnitin.com, or they wouldn't be trying to steal it.
In a just world, turnitin.com should lose. But apparently, some think copyright is not meant to protect ordinary people. If it is true that the works in question have no value, then turnitin.com wouldn't be using them.
After reading the Washington Post article, I think the students have a valid point, in an idealistic fashion. The students seem to object to the implication that all students cheat; that is, all students are either copying papers or selling papers. All papers not found to be copies are indexed, on the assumption that all students sell their papers for copying.
I have a question on a much lower level. Is it acceptable if an individual teacher keeps copies of all papers that have ever been submitted for his/her classes, and if a paper seems familiar, goes back and compares against an existing paper?
If you cite a paper to use it for purposes aside than commentary on that paper, it may not be covered by fair use. All sampling is not necessarily fair use. Fair use depends more on the use itself (i.e., public commentary), not so much on the size of what is taken.
That said, Turnitin doesn't seem to be copying the papers for commentary purposes or for any other "fair" use. They are copying them for a commercial enterprise. That argues against fair use. Consider: part of the service Turnitin is selling depends on them copying and saving these copyrighted works.
"Do the students necessarily have the copyright to their papers? I am fairly sure that in business or other settings a writer who is engaged to write for the business does not retain rights to their work. Instead the rights are held by the company."
Government entities (and presumably, therefore, public schools) can't hold copyrights. They are also not employing the students in any way--which is a requirement to apply the "work for hire" doctrine, where the boss automatically owns the worker's copyright. Work for hire usually requires a clearly written statement that the work is in fact a work for hire. Finally, automatically giving a student's copyright in their work to the school would have to be a 5th amendment taking--copyrights are sold and have value. The government can't just take it from you without being within the bounds of the 5th amendment (i.e., public use) and compensating you. This use doesn't seem public either--Turnitin is a commercial business.
Finally, the DMCA included statutory damages for digital copying (which this certainly is). So the idea that the students aren't actually selling their works is less relevant--there are still damages. Just because someone's not actively selling their work does not make that work fair game for copying. Especially if that copying is to make money, as is the case here.
However, to respond to Neurodoc. First, requiring someone to sign an affidavit (or a pledge) at a public school they have to attend is inherently coercive. Secondly, the problem is not whether they helped anyone to cheat at the time, the problem is that selling the papers to turnitin destroys the future market. IOW, I could go through high school doing all my own work, sign the pledge in good faith (I haven't YET helped anyone to cheat) and once I'm graduated sell all my collected papers to a site that sells term papers. The copyright infringement by turnitin (If that's what it is) destroys my future market for these papers.
If I write a story but never publish it, and someone compels me at gunpoint to give them a copy so they can read it - is that copyright infringement? Probably not. It is wrong? I would say it is. And copyright or not, this clearly seems to be the analogous case.
Of course, school-age children are routinely compelled to do things that adults are not. For example, they have their freedom of movement restricted (they must attend class). What's a little theft of property while we're at it?
Comparisons to search engines are beside the point. Google does not index people's pages without their consent. Anyone can exclude their data from Google's search results using trivial technical methods, methods which Google takes pains to facilitate (robots.txt exclusion files, page removal requests). Google begins with the presumption that if you are displaying your data for anyone to see then you are consenting to Google indexing that data. But if you aren't, you can tell them to stop and they will.
Turnitin isn't making money by the nature of having my paper in its database to compare against the work of others? I thought that was exactly how they made money.
I can see the arguments that it's fair use, but there's little question that they benefit commercially by having a database of papers for which they have not compensated the creators.
Turnitin's product is not at issue. The issue is their literal copying of the fixed expression authored by another--they take a student's original paper and reproduce it in electronic format by copying it to their server. This is prima facie copyright infringement, no question. The only question is whether it falls under the fair use doctrine.
Paddy O.: The work-for-hire doctrine does mean that employers generally own works produced for the employer by the employees; but it does not cover students.
abean: I believe that Turnitin doesn't want to give students an opt-out, because that would diminish its utility (though I agree that, if forced to give an opt-out, it could still provide a pretty valuable service).
BruceM: I'm not sure that there's lack of consideration in the contract, but I leave that to others; even if the license is void for that reason or because it's not voluntarily entered into, I think Turnitin has an independent fair use defense to the copyright infringement claim. Fair use, after all, is useful precisely when the use is not licensed; the claim is that the copier is entitled to use the work even in the absence of the copyright owner's permission.
Perhaps a better example is archive.org. This too may fall short if their assertion of noncommercial use holds up.
Thanks! I think your point is well taken.
John
Indeed it works by putting sentences and phrases in the database ... but, according to the site, if a conflict is discovered the site gives enough context to tell the customer whether the plagiarism is real. Obviously they have to do that -- a student cannot be accused of plaigarism merely on the say-so of turnitin.com without some supporting evidence. Therefore, although iParadigm is transforming the work for its index, they need to keep originals and present them in large part to their customers when a hit occurs.
-dk
I admit your response is pretty persuasive, but I'm not totally convinced. Unlike a book review, Turnitin is reselling use of the entire student paper to the schools. Indeed, their service is worth considerably less without their database of complete student works.
Also, it's not clear to me that they aren't using the papers as a substitute for a right the students themselves might have themselves. A service similar to Turnitin might indeed flourish by compensating students for access to their work. Such a market is unlikely to develop, however, if Turnitin is allowed to essentially resell use of the papers to schools without compensating the authors. Furthermore, I wonder whether Turnitin treats their database as its own intellectual property. Could they sell their database of papers to another company? Could they translate the papers and charge a premium for access to the translations?
It's not clear to me that Turnitin has such an easy case, here. Especially if they regard their database of papers as their own intellectual property.
Since Turnitin is making money from this license, and would be unable to make money without it, I think it is clear that the work of the authors has commercial value to Turnitin. I suspect that this value is individually minimal, but minimal is not zero. I don't see why it would not also have value to a competitor. Turnitin is destroying the market for a substitute good by taking IP without compensation. Other than the amounts involved, I don't see this as particularly different from the case of a movie made from a book.
Even though I would find fair use overall here, there is no way that the use of these papers can be considered 'transformative'. It isn't even a close question here. 'Transofrming' a creative work has nothing to do with the PURPOSE that the work is used for - it instead studies what actual CREATIVE CHANGES are made to the underlying work itself.
Making thumbnails for images in Internet search engines could at least be arguably 'transformative' if you consider the size of the underlying picture to have aesthetic worth and value. A larger picture often has more detail to the eye - hence a smaller thumbnail can be 'transformative' if you use the broadest possible meaning of the term. However, it doesn't apply here no matter how broad you consider the term 'transformative' to be. It is simply a misapplication and misunderstanding of the concept in this instance.
I am not sure that is correct. "Transformative" use or purpose is part of the test for fair use. The cases I see discuss "transformative use" of a product, and consider both physical changes to the copyrighted work (such as rearranging, putting it in a different medium, etc.) and the difference in use of the material (Thus, by developing or licensing a market for parody, news reporting, educational or other transformative uses of its own creative work, a copyright owner plainly cannot prevent others from entering those fair use markets. See 4 Nimmer § 13.05[A][4], at 13-181-13-182 ) (Emphasis mine.)
I think the entire idea of "transformative" depends heavily on the purpose or use. Mere transformation of physical form, without change in purpose or use, sounds more like a derivative work.
That's not true - under section 105 of the Copyright Act, works of the US Government, and those made by its employees in the course of their employment (hence works for hire) are not subject to copyright. However, that section does not apply to local governments (which, at best, public schools would be), and it specifically allows the Federal Government to hold copyrights "transferred to it by assignment, bequest, or otherwise."
But the school still wouldn't own the copyrights to the students' work, for the other reasons mentioned.
Also: since state governments etc. can own copyrights, that gives rise to some strange consequences. The policy reasons for not allowing the fed to copyright its work applies to other governments too--it must be infringement if someone downloads and prints a batch of state laws, for example. But the public is expected to have access to (and is presumed to be aware of) those laws. Kind of strange.
Actually, Google does maintain at least one proprietary database containing copies (yes, plural) of many copyrighted works. (We can quibble over whether the googleplex contains one database or many.)
Google doesn't make copies of those works available to others, but it does keep copies of what it crawls and make additional copies of the original copy for internal use (such as preparing search databases). It keeps those copies around for a while. (It may use the copies of the same text multiple times to produce multiple search databases.)
Additionally, storing the text of a paper in a database is as transformative as making a thumbnail of an image. Your average term paper will have formatting, 1" margins, Times 10 point, double spaced, etc. while a text only copy stored in the database would lack that. Similarly a 96x96 pixel thumbnail will not be disposing of a substantial portion of the original content if the source image was 100x96 pixels.
And those who are questioning Google's safe position on copyright should remember Google Book search. They are borrowing books from libraries, making copies, and building indexes that would allow them to recreate the book (ie. the first word on page 1 is "It", the second word on page 1 is "was", the third wordl on page 1 is "the", etc.) And returning the original books to the library.
Hattio, since schools are free to discipline cheaters in the absence of an I-haven't-cheated pledge, and you see it as "inherently coercive" to require such pledges of students, pledges of this sort could have no legal effect in a case like the instant one? (We could overcome the "future" issue, could we not, with by adding "...neither-have-I-nor-will-I-assist-others-to-cheat"?) If you have represented that the work you are submitting is your own and you will not assist others to cheat by facilitating plagiarizing, then what use is turnitin doing with the work it archives other than verifying the "have not" and "will not" of that pledge?
Would it matter if turnitin were not a for-profit company, but rather a non-profit endeavor serving solely the purpose of protecting schools against cheating in the form of plagiarizing?
Would it matter if turnitin did not seek to deny other companies the same materials it in-putted to create its database, allowing students to submit their papers to those other turnitin-like companies, who might pay the student in order to put together their own databases? (I don't think those other companies could succeed if turnitin had established a "lock" onthe school market and they now had to get a toehold by "buying" papers to assemble their own databases in order to compete. But if a court determined that turnitin had used improper means to keep competitors out, perhaps they could be forced to share the database they had assembled in a manner not unlike Microsoft sharing code.)
csl, the presence of proctors during an examination implies that some test-takers may cheat, not that all test-takers cheat. And "all papers not found to be copies are indexed," NOT "on the assumption that all students sell their papers for copying," but because some students do sell their papers to thoss who resell them to would-be plagiarists. (And are you really convinced of the sincerity of their claim to be offended by the implication that students cheat on writing assignments? I'm not.)
Another example of a poorly chosen word for a legal concept eventually changing the way some lawyers use that concept.
Would the Turnitin database keep the student's name on the work?
I ask because: I have, in a few occasions in my academic career, borrowed analysis or sections of a paper I've written in another paper on the same or similar topic. For example, a literature review on a subject might become a full-fledged analysis in another paper.
Imagine this, then: Both papers are submitted to the Turnitin database. My second paper is flagged as plagiarizing, even though, well, I'm plagiarizing myself.
Hence, my first sentence, which you didn't quote.
As for the derivative work of the assignment argument, I don't see what that gets anyone. That would in no way absolve turnitin from having to get rights from the students to those creative elements of the papers that are not found in the assignment. Calling them derivative works concedes that they are works for copyright purposes and distinct works from the assignment. (That a work is derivative in no way reduces the copyright rights of the author over those elements that are in the work, not in the original work, and sufficiently creative to warrant copyright protection.)
1. Even if a paper is on a set topic and is fairly constrained, if original, it would almost always contains sufficient original expression to qualify for copyright protection. The bar is very low here. At best, it might possibly be considered a derivative work of the original assignment (doubtful), but that doesn't buy them anything, since the student would still own the copyright to the additions made, as long as they constitute original expression. And note, that if they don't contain original expression, then why the writing assignment in the first place? How do you tell the difference between an "A" paper and an "F" paper except for the original expression added? But it likely wouldn't be a derivative work because it isn't based on another preexisting work.
2. As noted above, Work for Hire doesn't help the defendant. The arrangement fails the first test, since the students aren't (formal) employees (though they are working w/i the scope of their "employment"). At first glance, it might qualify under the second, as a test or an answer to a test, except that the required agreement has to be in writing. (And you get into the question of consent by minors).
3. The copying of the paper to disk is "reproduction", pure and simple. The defendant is unlikely to be creating a derivative work here, because it is unlikely to be adding original expression. (And that would be infringing anyway). Also, every time the paper, or a significant portion of it, is read from disk into memory, another reproduction is made.
4. If the click-through agreement is binding, a non-exclusive license to the defendant may be granted by the students. This would seem to be a valid defense. However, it may fail, as suggested above, as being an adhesion contract, lacking consideration, or possibly because of the reduced contracting capabilities of the minors involved.
Is the license void for minor students? Or just voidable? And does that matter here? I would suggest that there is a big difference, since the major potential copyright infringement would presumably be when the paper is copied to disk, and if the minor later repudiated the agreement, that would be after that copying had occurred. Except that additional copies are made every time that the paper, or significant portions of it, is read from disk into memory to compare it to suspect papers.
5. Which brings us to Fair Use, under 17 USC § 107, which has four factors:I can see courts going either way on this. Factors 2 and 3 would seem to cut against Fair Use, while 1 and 4 would seem to be up in the air right now, and would be where the courts could swing it back towards Fair Use, should they so desire.
Finally, I appreciate the ingenuity of the students, and their advisers in registering the works before submitting them. That significantly changes the dynamics of the litigation. Not only would a prevailing plaintiff be elgible for statutory damages, but also should get his attorneys' fees, etc.
I thought a "copy" had to be tangible.
A copy does not need to be tangible — if it did, then the large majority of copying music, movies and computer software on the internet would not be infringing.
There is, however, a requirement that the copies be "Fixed," and fixation requires that it be "sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration."
One of the famous copyright cases (the name of which I can't recall) involved a service provider was found to have infringed a competitor's copyright by loading the competitor's software into computer memory. (Details anybody else?)
I'm a bit bothered by factor 4 of the fair use analysis. Since there is no natural market for high school term papers, I think that the best approach is just to say that factor 4 doesn't apply either way, and only look to the first three factors (plus whatever other factors the court chooses to consider.)
The case I was thinking of was MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993). It even has a Wikipedia entry, which says:I don't follow this area of the law as closely as I used to, but my memory is that a lot of other Circuits picked up this reasoning.
On the one hand, this reasoning seems to track the language of the Act better than the opposite. With the right tools, you can read the contents of RAM memory. But it doesn't feel right when I put on my programmer or engineer hats. After all, part of the benefit of RAM in computer architectures is that it is dynamic. Also, the reality in most cases is that the actual bits decay fairly quickly (i.e., are essentially discharging capacitors), and so have to be reloaded or refreshed extremely frequently (in human terms). Nevertheless, from a practical point of view, information loaded into RAM is effectively stable and readable until overlaid or power is lost.
This is a bizarre sophism. Is it a copyright infringement if I commit the essay to memory? What if I have eidetic memory? C.S. Lewis was purported, while in college, to request that guests to his room pick any book off the shelf, tell him the page number, and he would recite the entire page, picking up in mid sentence.
What about if I am vision impaired and I photocopy the essay to 4 times its original size?
I am aware of at least one company that prepares custom large-type books for the vision impaired. A customer brings them any book he wants. The original book is sliced into pages, and the pages reproduced with whatever magnification the customer requests, and then bound as a book. Note the original book is destroyed by the process, and no extra copies are kept beyond the life of the production process. No one originates one of these books without buying an copy of the original work in its standard format. The producer definitely makes a profit on these books. THe producer has *never* faced a legal challenge, but has made inquiries to several publishing houses at the request of his customers.
Clearly copying, by itself, even if it is part of a profit motive, is not enough to infringe - except for some odd scenarios in which may require brainwashing after viewing copyrighted material. (wait, perhaps that was the purpose of the mind-numbing show I saw last night...) Merely making money off someone else's work is not the trigger - because all commerce in IP only works because numerous people in the supply chain make money delivering and commenting on work for which they have no copyright.
And transience is not really an issue, either. Sure it does not make much of a strain to say that the copy made to display text on the screen is transient. But what about placing it on a network server...one which is backed up periodically...and the back-ups taken off site...and the end of year back-ups stored for years... If these distinctions are the heart of copyright law.
But (1) that's a valid point in theory, but how much market value would these papers have in that respect? Why would a service pay students to submit their papers to it? The only people who would submit papers would be people _not_ planning to provide their papers to other students for the purpose of plagiarism. In other words, the very fact that you're willing to sell your product to Turnitin2 is the reason Turnitin2 wouldn't be willing to pay for it.
And (2) That begs the question. If it's fair use to do this, then every turnitin-type service can use the papers without paying for them, so there is no such market.
Otherwise, the argument proves too much; any fair use by definition prevents people from selling their copyrighted works to someone who would otherwise purchase the work to use for that purpose. My use of the quotes from the book for my book review without paying for them prevents the author from selling those quotes to me for book reviews. Google's use of copyrighted works for its archive destroys the ability of people to sell their works to Google or to a competing web archive.
The fact that the market for papers is the entire reason that Turnitin exists seems to argue that factor 4 is possibly the most important of the four. It may be an inherently dishonest market, but it isn't ilegal.
Umm, no. Copyright law reserves the right of distribution as well as the right of copying. The point is, someone who lawfully acquires a copyrighted work is supposed to be allowed to make intangible "copies" of a work. Otherwise, you could argue you cannot read a book because you'd be making an intangible copy on your retinas.
Radio stations do not need to acquire the right to copy the works they play because they are not copying them. They only need distribution rights.
As for Neiporent's point, it proves too much as well. If he was right, and I invented a holographic projector and held that patents for it, it would be fair use for me to make holographic projections of people's books without paying them. The projections are not a substitute of the book, book sales are likely to increase rather than decrease, and the only market harmed is their ability to license the book rights to me rather than me taking them for nothing.
I agree that the "if it wasn't fair use, you'd have to pay for it, therefore it harms the market" test can be read in always cuts against fair use and therefore can't be a test at all. However, this is commercial and takes the entire work.
As for your "why pay" argument, it's really obvious why. A plagiarism detection service that checks against "40,000 actual high school papers" can charge a bit less than one that checks against "450,000 actual high school papers".
Each paper in their database, at least to a small extent, increases the value of every check against that database that they sell.
Point 4 is often misunderstood. Point 4 really says even if your use would ordinarily be considered fair use, even if you're quoting minimal amounts for review, if by doing so you significantly damage the market value of the work, then it isn't fair use. The Gerald Ford memoirs case (against Time, if I remember correctly) is a good place to look. Some people in this thread seem to assume that if a work has no market value, copying it is automatically fair use. That's simply wrong. The existence of statutory damages argues against that view.
Caveat: I am not a lawyer, so take my queries accordingly.
One: Doesn't the teacher actually "own" the work?
The plaintiffs' complaint refers to the written work as "unpublished manuscripts" but that seems misleading. Unlike a voluntary submission to a student literary magazine, required papers and essays are assignments given by the teacher. To ease the burden of storage and facilitate improved writing, the teacher may return the written work, but as I understand it the teacher isn't necessarily required to do so.
Two: If the plaintiffs' argument holds, could it not be applied to original test answers as well?
I don't know what you mean by "holographic projections of people's books," but any way I can interpret that phrase, they are a substitute for the book.
All else being equal, of course. But all else isn't equal in the scenario you describe. 40,000 papers submitted by teachers to the service are more valuable than 450,000 papers submitted/sold by students to the service.
SocratesAbroad:No.He or she might or might not be required to do so, but that wouldn't change the answer. Don't confuse ownership of the physical copy with ownership of the copyright. The creator owns the copyright, unless he sells it (including a work-made-for-hire) or created it in the course of his employment. A teacher owning a copy of the paper doesn't have any effect on the ownership of the copyright.
Multiple guess tests are a bit more problematic. Optimally, each question has a right answer, and thus the test itself has a set of right answers. So, I think you could argue that getting all the questions right would lack original expression on the part of the test taker. But when you start throwing in wrong answers, then maybe you could argue that if the test were long enough, the mix of right and wrong answers, as well as which wrong selection was made, might constitute original expression. There is some caselaw for some copyright protection of sequence and organization. I am not happy with this argument, but do see that it might be made.
As should be obvious, the more the student answers in his own words, the stronger his copyright claim is. A law school exam essay should contain an extensive amount of original expression, whereas multiple guess test answers likely contain little to none.
However, a way around this is to require the student to submit the assignment to only the teacher. The teacher would then place the assignment on a school leased server (from maybe Turnitin). The school would contract with Turnitin to compare the assignments on its leased server with other leased servers.
This model would still serve the purpose the helping to eleminate cheating but Turnitin would not own the database, which I think is the main problem with the original arrangement.
What's fascinating to me is the different discussion on different websites. Volokh users seem to lean toward fair use, on the whole. Users of slashdot, techdirt, and Digg (generally younger and generally less-legal audiences) lean much more strongly toward infringement. It highlights an interesting disconnect between the legal and general perceptions of copyright law. Of course, the Digg/Slash/Techdirt audiences are also aghast every time the RIAA tries to enforce copyright, so it highlights some intersting inconsistencies; to a lay audience the nature of the author seems to matter. At least on an emotional level those audiences are more sympathetic to an individual studnet who has had their work copied than a music label.
The number of spurious arguments on the other sites are also interesting. A lot of the discussion at TechDirt focused on consent and government action. It seems that the case could be cleanly resolved on fair use.
You mentioned being confused about the process and student requirement. Turnitin.com provides methods for either (1) the student to submit a paper or (2) the instructor to submit the student's paper. Both students and instructors can create accounts at Turnitin.com for this purpose.
Et al.:
I've noticed that many posts here (and elsewhere) argue that student work has little to no value outside the context of their school and the grade received. This conclusion seems to derive from personal contempt for student's work, not recognizing that student work has been the basis for profitable ventures down the road (the oft cited example is Google, the idea of which was developed by then-graduate students). There are well-publicized cases of professors essentially ripping off their graduate students' work, as well, in publication without extending due credit to the graduate student as co-author.
John Barrie, the creator of Turnitin.com, even acknowledges this potential for commercial value in student work implicitly in his remarks, quoted in the Chronicle of Higher Education, about why students should avoid writing anything that may have "creative" value:
"Just don't do it at this institution" ignores the very real commercial potential inherent in student works that arise in response to instructor's assignments. It's not uncommon for professors to essentially assign students to "write about whatever you want, just make it x number of pages and have a clearly supported and articulated thesis."
Moreover, Barrie's claim that the work submitted to Turnitin.com is not distributed elsewhere is patently false. The end result of submitting a paper to Turnitin.com is the "Originality Report" that Turnitin.com generates, indicating segments of text that appear more or less "copied" using a color-coded numerical index for each segment. If a segment of text is flagged as potentially copied, the segment has a corresponding "source" to which the report matches the segment. If the source is a student paper (rather than, say, an internet page), the instructor viewing the report cannot view that other student's paper initially. However, the instructor (#1) may *request permission* from the instructor of the course (#2) for which that original paper was submitted. If instructor #2 grants access, then instructor #1 will get an emailed copy of the original paper. In other words, student work is distributed elsewhere upon request, and soliciting the student's permission for said distribution is entirely ignored in the process. This distribution does have the potential for instructors to appropriate student ideas for profit (see the heading, "Scenario #3, Google: A Chinese corporation" here.)
What impact all of this has on the legal standing of Turnitin.com's fair use argument may be arguable, but the question of whether student's work has potential value seems to be not in dispute.
This is a classic case of undue influence to coerce students into involuntarily ceding their intellectual property rights—under duress—to a profiteering, corporate giant. The corporate giant (Turnitin) prospers to the tune of $20,000,000-$160,000,000 in revenue per year off the backs of MINORS, while the students do not get a PENNY in compensation for their time, resources, or documents that Turnitin monetizes without students' willing permission. What Turnitin and the school are doing to the kids is nothing short of indentured servitude!
Turnitin had revenue of $10,000,000 in 2003. The owner of Turnitin, John Barrie, recently admitted (BusinessWeek) that Turnitin's membership has DOUBLED every 12 months since 2003.
2003 = $10,000,000
2004 = $20,000,000
2005 = $40,000,000
2006 = $80,000,000
2007 = $160,000,000
2008 = $320,000,000?
Student compensation since 2003 = $0
Turnitin also commits copyright infringement by emailing students' intellectual property to third parties. Proof, you ask? Go to the following URL to read about a professor's first-hand experiment with the Turnitin system. The results of the experiment provide undeniable proof that Turnitin emails complete, word-for-word copies of students' papers to third parties around the world (without students' permission):
http://www.mikesmit.com/page.php?id=23
Yes, the McLean students properly registered their copyrights with the Copyright Office long before filing the lawsuit. Their papers also included clear disclaimers warning Turnitin not to index the papers. Turnitin blatantly ignored the disclaimers, and now Turnitin will pay, both literally and figuratively. The DMCA set the penalty at $150,000 per violation (paper), not the students' pro bono attorney.
To those student-detractors who claim that the "students are cheaters," "the students' parents just don't want their kids getting caught," or "they're probably 'F' students anyway," you are WRONG, WRONG, WRONG! The minors who filed the lawsuit are all STRAIGHT "A" students. These kids are not suing the school. They are not suggesting that the school should refrain from vetting for plagiarism. What the kids ARE saying is that the school has NO RIGHT to blatantly usurp their intellectual property rights by using undue influence to force them to hand over their papers to be monetized by a huge corporation, while they don't get a PENNY for their time, ideas, labor, or documents.
Note that the copyright act does have a requirement that the original be "fixed in a tangible medium of expression," but that this use of "tangible" is not what you and I think. If you can perceive it for more than a period of transitory duration, it's tangible enough. See 17 U.S.C. 101 for the definition of "fixed." I suggest that your retina example isn't long enough. (And, it's a bit absurd anyway.)
Also, it appears that you are confusing the rights of public performance (what happens on the radio) with the right to produce copes and the right of distribution. Note that Sec. 106(3) provides for "distribution in copies or phonorecords." So, you cannot distribute the work unless you do it in a copy. A public performance does not require that copies be made.
The copyright is owned by the author. Being a class assignment is irrelevant. The only way a school can own the copyright on the paper is if the student is an employee of the school. This is called the work for hire doctrine.
Community for Creative Non-Violence v. Reid, 490 U.S. 730 at 730 (1989).
The National Labor Relations board has ruled that graduate student assistants are not employees of their schools, even when performing teaching assignments. Brown University, 342 NLRB 483 (July 2004).
As well, the Supreme Court has analogized in a case that decided companies are not required to pay employees for training that does not provide the company with an economic benefit, that if a student is also an employee, they should be paid for preparing their classwork. Walling v. Portland Terminal Co. 330 U.S. 148 at 152 (1947).
“Otherwise, all students would be employees of the school or college they attended, and as such entitled to receive minimum wages.”
“Had these trainees taken courses in railroading in a public or private vocational school… it could not reasonably be suggested that they were employees of the school”.
There are two cases directly on point about copying a work for educational purposes. With both companies being found liable.
Princeton University Press v. Michigan Document Services, Inc. 99 F.3d 1381(6th Cir. 1996).
Basic Books v. Kinko’s 758 F. Supp.1522(S.D.N.Y 1991).
http://www.essayfraud.org/professor-plagiarism.html
More on that here
Rebecca Moore Howard, a professor who studies plagiarism, is quoted on EssayFraud.org a time or two. Her own blog mentions some interesting encounters as she has tried to root out more information from Turnitin.com about its practices.