The McLean, Va. High School students whose copyright infringement lawsuit
against iParadigms, LLC and its Turnitin
plagiarism-detection software system
on summary judgment on March 11 have filed a notice of appeal [PDF]
to the Fourth Circuit
Court of Appeals.
That was likely a surprise to iParadigms, whose CEO John Barrie confidently
that hell would freeze over before the students would
appeal. Yet, appeal they have. So this story isn't over yet.
District Court Judge Claude Hilton's Opinion [PDF] ruled
that Turnitin's use was highly transformative
and hence fair use; that
is one of the issues that will be appealed, as Robert Vanderhye, the
attorney representing the students pro bono, explained to me in an email
judge held, and what we are appealing, are (1) if a minor clicks on to
the Turnitin.com website he/she is bound by the conditions of the
"Agreement" even if it denies the student the ability to enforce his/her
copyright, and (2) as a matter of law the Turnitin use is transformative
so that it is fair use instead of copyright infringement.
With respect to the first, we submit that the Court misinterpreted
Virginia law, and did not apply the controlling Virginia cases that we
With respect to the second there clearly are facts in dispute. Among
the facts in dispute are a) does the Turnitin system work to deter
plagiarism, or does it actually encourage plagiarism since it is so
easily avoided by anyone who really wants to plagiarize; b) is the
Turnitin system so insecure that students papers can easily be recovered
by a hacker so as to easily allow theft of the students' works, or for a
criminal to use information contained in student works against them; and
c) how can the Turnitin use be transformative when they will send a
student's work verbatim to someone outside the student's school system
without the student's permission, or even knowledge. Also, with
respect to the second point, Turnitin violates the FERPA since student
names, schools, and personal information are usually on the student
works; since it violates FERPA as a matter of law the Turnitin system is
against the public interest, and therefore there can be no fair use.
He mentions that there are facts in dispute because a court is only
supposed to grant summary judgment if the pleadings and supporting
documents, when viewed in the light most favorable to the non-moving party,
show that there is no genuine issue as to any material
fact. Fed. R. Civ. P. 56(c).
The major issues being appealed then are: Was it error to dismiss this
lawsuit on summary judgment? Can minors lose copyright rights, because of
clicking "I agree" to an agreement that their schools compelled them to
agree to? What about the privacy issues under the Family
Educational Rights and Privacy Act (FERPA)? But the key question is,
Is this fair use?
iParadigms' point of view, one that the lower court agreed with, is that a
lot of high schools
and universities use this software and rely on it. They find plagiarism
goes down significantly. Turnitin isn't using the creative parts of the
papers for commercial gain, the judge said; it's a system of integrity
checking. And that's a transformative use.
Similarities between Google Books and Turnitin:
- The computer does the copying, not humans.
- Both archive complete copies of the works.
- Neither gets the works directly from the copyright holder.
- Both claim the use is transformative.
- The students are minors.
- There are arguably privacy issues with Turnitin.
- The student papers are unpublished works.
- The conceivable market harm is distinguishable.
- There is no way students can opt out. Any author can opt out of Google
- Turnitin represents itself as a system for protecting copyrights.
For that matter, so is Google
Books, in that it's a kind of digital card catalogue, letting us know where
to find books with information we want. In Perfect 10,
Inc. v. Google, Inc.
(the thumbnail photo case, hence another
works-in-a-computer-database fact pattern) the court found that, too, was
transformative and hence fair use. Judge Hilton notes this finding in his
order on page 13. The photos had one purpose originally, the court
found, but putting
them into a database was something not originally intended, and the search
engine "provides a social benefit by incorporating an original work into a
new work, namely, an electronic reference tool." The purpose is limited
and the works are used only for comparative purposes that provide a social
benefit. He does mention the exception to that, however, in that if there
is a request to see the work a student's paper allegedly seems to have
plagiarized, a teacher can obtain that work to evaluate. Hence the appeal
over archiving by students who don't want their works used that way.
the students have issues about having to use the system, they should take
it up with the schools, the judge ruled, because that is who is giving
Turnitin authority to do what they are doing with these student papers, and
the schools had the right. As for fair use, Judge Hilton found that this
was a transformative use, and he
quoted a definition of transformative from a case, Harper &
Row Publishers, Inc. v. Nation Enterprises, to mean that it "adds
something new, with
a further purpose or different character". If use is transformative, he
it's "strong evidence" that the use is fair use.
iParadigms has on its website a
opinion [PDF] it commissioned from Foley & Lardner.
Fair use is a bit hard to pin down. Even the legal opinion notes that fair
use is very much dependent on the facts of each
Determining whether a copyright exists in a particular work or is infringed
by a particular use of the work is difficult. The analysis is so
fact-specific that relatively minor variations between the facts of
superficially similar cases often lead to diametrically different
To grasp the students' point of view, imagine if a company decided to
offer a service to check for infringed code, so it collected all the
world's proprietary software it could get its hands on, without permission
from the original authors. Say it got copies from the world's libraries.
And there was no way to opt out.
Now, imagine that if the software thought it found a match, you could
request to see the proprietary code that it was thought to infringe. Do
you think the proprietary software companies or the authors of that code
would view that as a transformative fair use?
The crux of the students' issue, then, is the archiving. They don't want
their papers to remain in the system, even if they must submit them for
originality review. It bothers them that iParadigms archives the students'
manuscripts and then uses them for profit, while they, the students, lose
control over their own work without getting any compensation. The students
have their own website, Don'tTurnItIn.com, and they have some
additional court filings available there.
A lot of commentary so far has cited
Judge Hilton's ruling, because of its fair use arguments, viewing the
opinion as perhaps being helpful to Google in the litigation brought against it by the Author's
Guild and others regarding Google
Books, and I'm sure you can see why. But there are significant
Some have argued that copyright law is out of date in a digital world,
the Internet being nothing but one huge copying machine. Computers copy,
and so some suggest it would be more logical and less damaging to penalize
wrongful distribution, not copying. In that sense, the judge's ruling was
quite progressive. Indeed, it's hard to read his opinion without
concluding that to Judge Hilton, copying by a computer isn't a problem, so
long as human eyes are not involved, the use is transformative, and there
is no distribution for profit or any market harm.
In iParadigm's Counterclaims
[PDF], there were several other causes of action, trying to mold the facts
into a claim of "trespass to chattels" and even claims of violations of
the Computer Fraud and Abuse Act, as well as Virginia's Computer Crimes
Act. Those are serious allegations. On the first, the assertion was that
the plaintiffs allegedly used nyms like 'Rube Goldberg' and
'Perpetual Motion' to improperly file papers in the Turnitin system without
The court dismissed those counterclaims, pointing out that you have to
prove actual damages and, in the case of trespass to chattels, some
impairment of quality or condition or use. It's a bit hard to come up
with a dollar figure for how harmed one is by someone's use of a nym. As
for filing the papers without authority, where's the financial harm, the
Trespass to chattels in
meat space is like someone taking your car for a joy ride, getting into a
fender bender, and then bringing the car back without fixing the fender or
even filling the gas tank back up. Not only is the car damaged, but you
didn't have use of it while it was out being driven around, and so you
couldn't drive it to the airport yourself as you intended and missed your
job interview. And it's your car, your personal property, which is what chattel
Like many other legal concepts, it has been applied to digital world, as if
physical property and intellectual property are identical, and in some
ways, it fits. AOL was an early trailblazer in using trespass to chattels
successfully against spammers, arguing that the
sheer volume of emails interfered with their being able to use their own
system as intended to service their real customers properly (here's one
iParadigms also claimed that the terms of their Usage Policy provided
for indemnification to iParadigm arising out of any use of the Turnitin
website. It also has a user agreement that you are confronted with and must
click "I Agree" to in order to submit papers to Turnitin. The judge made a
distinction between the user agreement and the Usage Policy, however,
noting that there was no "I Agree" to the Usage Policy or any evidence that
the students saw it, and it was not referenced or incorporated into the
user agreement. So he decided that while the students were bound by what
they said "I Agree" to, they never agreed to the Usage Policy. But the
appeal asks whether these minors ever gave a legally binding assent, since
their "I Agree" was really "My School Says I Have to Agree". In some
respects, this EULA issue may be as interesting to track as the fair use
Comments (21 posted)
Henry Kingman, editor of LinuxDevices, opened the
Embedded Linux Conference
with a look at the trends in embedded development since he started covering
the subject in 1999. Based largely on the annual surveys run by LinuxDevices,
his keynote speech highlighted the growth of Linux as an embedded operating
system as well as where it is headed in the next few years.
The conference, which started April 15 in Mountain View,
California, gathers around 175 embedded developers for three days of talks
on a wide variety of embedded topics. Sponsored by the
Consumer Electronics Linux Forum
(CELF), the conference has become the premier technical conference for the
ever-growing embedded Linux community. Each day has a keynote, with
kernel hacker Andrew Morton and CELF architecture group chair (and
conference organizer) Tim Bird rounding those out, followed by a half-dozen
presentations slots, with three parallel presentations.
Bird introduced Kingman as one of the main providers of news about embedded
Linux, relating that LinuxDevices and LWN.net are his "two main sources of
information" about the community. Bird marveled at the body of work that
Kingman has amassed: "this guy is prolific". He also reminisced a bit about
the early days of embedded Linux, starting with his days at Lineo to his
current work at Sony:
It was hard to get people to pay attention to Linux, now Sony is putting
Linux into almost everything.
Kingman acknowledged Bird's introduction, but said that he didn't know
"if that makes me an expert in the forest, or lost in the trees".
He looked back to a 1999 San Francisco Bay Linux Users Group meeting
with Linus Torvalds as the featured speaker. Kingman said that Torvalds
wanted Linux to be a desktop operating system but that he saw the embedded
space as the big growth area.
Later that year, Kingman attended the first
LinuxWorld conference where he saw some folks from Transmeta talking about
squashfs and cramfs. An article he wrote about those filesystems was
published by Rick Lehrbaum, founder
of LinuxDevices. That was the first of more than 3000 articles
Kingman has since written for LinuxDevices.
Kingman then presented the results of the most recent
reader survey. The survey gathers information about what LinuxDevices
readers are doing or planning with regard to embedded Linux development. It
has been run for eight years, providing some interesting information on changes
in the readers' attitudes over the years.
Usage of Linux in embedded development projects crossed a threshold this year,
with more than 50% of the 812 respondents saying that they are currently
using it. Usage of Linux has been
growing year over year, but didn't cross the halfway mark until 2008. More
than 61% believed their company would be using Linux within the next two years.
The ARM family of processors has continued its growth with 30% of the readers
using it, while 25% are using x86 variants. ARM overtook x86 three years ago;
that trend looks to be continuing with respondents seeing 31% ARM versus
23% x86 over the next two years. Kingman said that he thinks Intel is
trying to reverse that trend because spending on consumer devices is predicted
to "outstrip IT spending".
There were a couple of questions asking where respondents obtain the
version of Linux they use in their products. Ubuntu has a somewhat
surprising share at 8%. For a relatively new distribution that is not
specifically targeted at that market, it stands out, as does its predicted
growth to 10% over the next two years. Kernel.org at 16% and Debian at 14%
are the leading sources, with uClinux tied with Ubuntu and MontaVista and
Fedora at 6% each.
Unsurprisingly, per-unit royalties were not popular with two-thirds of
respondents being unwilling to pay those, but 60% were willing to pay for
development and support of embedded Linux, so it is not just the free-beer
aspect that is drawing companies to Linux. Most (45%) get their sources as a
free download from a community site like kernel.org or handhelds.org, with
18% getting them bundled with their hardware. Only 11% said that cost was
the greatest influence on their choice.
Legal threats are still on the minds of some, with copyright or patent
concerns being considered a significant threat to roughly half of the
respondents. SCO has fallen off the radar, with only 2.5% thinking that it
is still a threat. "None of the above" was the big winner, presumably
meaning that there are no significant threats, at 40%.
Kingman finished with a request of the embedded community to let him know
what things should be covered in more depth and any additional areas they
wish to see covered. He is looking for input on what the community wants
to talk about: "we want to be your website."
Comments (6 posted)
Your editor has certainly attended no shortage of Linux-related
conferences. Many of those are developer conferences, which are invariably
interesting events. Others are oriented around marketing or outreach, with
rather more variable results. The
Linux Foundation's Collaboration Summit, which ran from April 8
to 10, is unique, though, in that it attracts representatives from
throughout the Linux ecosystem. Developers are not in short supply (though
it seemed like there were fewer than last year), but those developers spend
three days talking with corporate executives, industry analysts, and,
crucially, a number of high-profile users. This mixture of people creates
a very different dynamic which supports a whole range of interesting
One of the first events was the kernel developers' panel, moderated by your
(normally rather immoderate) editor. Panelists James Bottomley, Matt
Domsch, Dave Jones, Christoph Lameter, Ted Ts'o, Arjan van de Ven, and
Chris Wright discussed a variety of topics ranging from kernel quality
(getting better), code review, development process participation, hardware
support, and more. Your editor was not able to take notes from the panel;
perhaps the best report which has come up so far can be found in this
InformationWeek article by Charles Babcock.
IDC analyst Al Gillen spent half an hour going through a bunch of
chart-heavy slides on the future of Linux in the marketplace. Overall,
things look good, in that a market worth $20 billion in 2007 is
expected to go up to $50 billion in 2011. There were lots of
associated details which have been reported elsewhere. One interesting
aspect was watching how the analyst trade copes with "non-paid" Linux
deployments - which, according to Mr. Gillen, is 43% of the total. There
was talk about how "monetizing" these deployments is a challenge for those
looking to make money in the Linux marketplace. He expressed surprise at
just how many companies are confident in their ability to support Linux
deployments on their own. But he also talked about just how important that
non-paid base is for the support of the entire ecosystem. Non-paid
deployments may be a "challenge" to those who would prefer to be paid, but
their absence would be a rather larger challenge.
There was an echo of this insight when Red Hat CTO Brian Stevens talked.
One of Red Hat's goals, he says, is to give customers the immense value
that goes with a "zero cost to exit" offering. There is no RHEL lock-in.
To that end, he says, the folks at CentOS have done Red Hat a great favor.
Brian also talked about the difference between the old "selling the
distribution" business model, which gave Red Hat an incentive to put lots
of shiny new things into each release, and the current model, which puts
the focus on continuity instead. Since Red Hat's customers have already
paid for the next release, Red Hat doesn't need to add lots of cool new
features to encourage them all to upgrade.
He then spent the rest of his talk on the various cool new features the
company is working on, including messaging, realtime
support, and more.
Marten Mickos, once CEO of MySQL and now a vice president at Sun
Microsystems, gave a talk which was intended to make listeners feel good
about Sun and its plans for free software. It bothers him, he says, when
people ask whether MySQL will remain committed to Linux; it strikes him as
a demonstration of uncertainty about the future of Linux in general. That
uncertainty is unnecessary; Linux's future is strong, regardless of what
MySQL does. But MySQL (and Sun) do
remain committed to Linux as a platform; the era of monolithic computing
platforms is over, and companies have to support customers who will make
their own choices at each level in the stack. So LAMP as an "architecture
of participation" will remain supported by Sun well into the future.
An industry panel on "the state of Linux" was a useful view into how some
large companies see the platform. They are all seeing growth in Linux;
Bdale Garbee (representing HP) noted that Linux is "showing up in
everything" that customers are planning. IBM's Dan Frye said that Linux is
ready for any kind of workload. Oracle's Wim Coekaerts did note, though,
that Oracle's revenue from Linux, at a mere $2 billion, is "still
There was a fair amount of discussion on how to work with the development
community; NetApp's Brian Pawlowski asserted that "money helps." By that,
he means employing developers to work within the community and advance the
platform. Bdale noted that HP tries to work "in" the community, not "with"
it. Dan Frye echoed that thought, saying that it's important to have
people with credibility in the community and to allow them to work inside
the community for long periods of time. Motorola's Christy Wyatt, instead,
worried that her company still doesn't have the necessary wisdom to work
effectively with the development community; Linux and the mobile industry,
she says, are still relatively new to each other.
Wim related a story from the first kernel summit
wherein an Oracle representative presented a laundry list of desired
features. That is, he says, not the right way to do things; the community
tends not to react well to wishlists with no development effort behind
them. Oracle now has a Linux development team which is entirely separate
from the normal product teams; among other things, it has a blanket
approval to contribute the code it develops, avoiding the lengthy and
tiresome internal legal review process. The company has also adopted a
policy of making projects open from the beginning, getting much-needed
review early in the process.
Other participants noted that working with a company's legal department can
often be the hardest part of community participation. Dan suggested
bringing in the legal department at the beginning of a project and
keeping them around; sticking with a single counsel who can slowly be
educated in free software ways is also important. Bdale said that we were
likely to need "legal domain experts" for some time yet, but that the
situation is getting better; most lawyers now have at least some
understanding of how free software licensing works. A couple of panelists
discussed the legal headaches that come with mixing components with
different licenses; they would certainly like to see fewer licenses going
into the future.
The final session from the first day covered the state of mobile Linux. It
was about the only contentious panel on a day where the majority of the sessions
were mostly educational in nature. One area of disagreement was over
security models. Some platforms (such as ACCESS)
work with a fine-grained
set of privileges, while Google's Android uses sandboxing and controlled
access to resources determined by asking the user. The fine-grained
approach is seen by some as an ideal way for carriers to lock down handsets
and exert firm control over what handset owners can do - not the desired
outcome. On the other hand,
asking users is seen as insecure; it's not usually too hard to get users to
agree to almost anything.
Perhaps the lowest moment in this panel came when Google's Eric Chu was
asked about participation with the community as opposed to developing
everything as a private fork. He replied that the Android code was open, it sits
in a repository somewhere. But there will be no effort to engage with (for
example) the kernel community and merge this code until it is "done." That
approach runs against what others had been saying since the kernel panel that
morning: one must get code out there as early as possible. When the
Android developers finally decide that their code is ready, they are likely
to have a nasty surprise when they try to merge it into the kernel and are
told that much of it is unsuitable by design. Google came off looking
somewhat bad here, but the truth of the matter is that most of the (many)
mobile Linux projects are operating in similar ways. Getting these
projects to really work with the communities whose code they are using is,
as with many embedded applications, a challenge. One can hope that the
suggestions given to these projects at the summit will be taken to heart.
That sort of communication is what makes this event worthwhile; it is often
hard for this particular mixture of people to come together in other
contexts. The Collaboration Summit was heavy on conversation in general,
often to great effect. One well-known developer commented to your editor
that the Summit had the biggest disparity between the official content and
the "hallway track" that he had ever seen. The hallway track was good,
with, hopefully, lots of good things to come from it in the coming months.
Comments (6 posted)
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