Posted by Eugene Volokh:
High School Students' Copyright Infringement Lawsuit Against Anti-Plagiarism
Site Rejected:
http://volokh.com/archives/archive_2009_04_12-2009_04_18.shtml#1239988167
I blogged about this [1]two years ago, and concluded that the site
would and should win under the fair use doctrine. Yesterday, [2]the
Fourth Circuit accepted the site's fair use claims. Here's my summary
of the matter from last year, though you might instead just read the
Fourth Circuit opinion:
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....
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
1. 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 --
2. is in aid of others' nonprofit educational mission, and
3. 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.
[But] 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.
References
1. http://volokh.com/posts/chain_1175270161.shtml
2. http://pacer.ca4.uscourts.gov/opinion.pdf/081424.P.pdf
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