Turnitin and fair use

The McLean, Va. High School students whose copyright infringement lawsuit against iParadigms, LLC and its Turnitin plagiarism-detection software system was dismissed 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 predicted 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 interview:

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.

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.

If 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 he thought 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 wrote, it's "strong evidence" that the use is fair use.

iParadigms has on its website a legal 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 situation:

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 differences too.

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 authorization.

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 court asked?

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 means.

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 example).

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 questions.

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If I wanted an opening paragraph to contain 4 links with at least 15 minutes worth of
aggregate reading, I wouldn't be subscribed here. Editorial, people! [PgDown]

Seconded; more context & background next time, please. It bordered on 
being unreadable for anyone not already familiar with this case.

I wondered if I were the only one who found this article hard to get in to. Ms. Jones seems to
be so immersed in the ongoing story she assumes we know all the background and issues.

It sounds like there are some interesting issues here. I hope a follow-up story will present
them for a broader audience.

And having no links at all would have made it so much *easier* to 
understand, of course. :/

(some people will complaiin whatever you do)

In that case, I agree: it's really clumsy... but it's also something I've 
seen lawyers do over and over (well, without the hyperlinks, this was on 
paper).

PJ's inhaled the lawyer mojo and habits. It's a terrible disorder. ;}

A lot of us (more than half the subscriber base? less than half?) also 
read it with an overtone of 'watch what the US does with trepidation, but 
no one US legal case can affect us in different jurisdictions'.

Its affect on most of the western world, no matter which way it goes, will 
be at most indirect.

Of course, I have to wonder why too much concern has to be given to *homework papers*.  I
never knew I had copyright on my homework!  The whole point of homework is to get a student to
learn, not to produce something of monetary value.  So it's unclear what kind of
"compensation" the students might expect.

Since plagiarism *is* a problem, I can kind of see why a school would want this.  I agree that
the EULA issue is interesting though.  Perhaps the school should require students to sign
something agreeing that their papers can be archived for comparison purposes, although they
can retain copyright.  That should take away the legal problem.

Why is "plagiarism" a concern at all?

If school reports are being used as a "rating system" by employers as a replacement for a
proper job interview, then that's the employer's problem, not the schools.

If schools are using the fear of a bad school project mark as a threat to force students to
work harder, then they should consider better motivations.

This reminds me of Zen and the Art of Motorcycle Maintenance, where he read/commented on
projects but refused to give any marks because the point was to learn, not to be graded. Many
pupils hated it. I suspect that the types likely to be/become successful open-source
developers would not be bothered though..

> I never knew I had copyright on my homework!

Cure yourself of this inexcusable ignorance. You own the copyright to any non-trivial work
that you create. Even a two or three word sentence can count as non-trivial.

There's no requirement for the work to have any value, but don't be so quick to dismiss
homework as valueless. How much do you think Einstein's homework would sell for? What about
J.K. Rowling's?

Did the question of minors forming binding contracts come up at all?  It seems unreasonable
for people who are not yet adults to be allowed to sign away their rights with a mouse click,
especially when directed to do so by an adult.

Yes, but the parents of minors, or someone acting in loco parentis, can enter into contracts
on their behalf. I suspect that Judge Hilton's thinking would have been that since schools are
presumed to act in loco parentis, they would have had the right to unilaterally make such an
agreement that bound all their students anyway; and that requiring each student to make the
agreement individually was not materially different from that.

Whether he's right or not is a different matter. It might be that legally speaking the form of
agreement *does* matter, and that if the school intended to make an institutional agreement
with iParadigms, that's precisely what it should have *done* - and because it didn't, no
agreements exist at all.

As for the arguments around the matters of fact, (a) and (b) would seem to be kind of
irrelevant to whether the use is transformative, as far as I can tell. Granted, it makes sense
to present arguments in order of strength, but I'd be afraid that they would distract from the
meat of the factual dispute - (c) even if an archive as a whole is a transformative use,
that's not what iParadigms were doing - they were amassing individual contributed works to be
redistributed on request, not merely presenting their archive or relaying received results,
and hence, from an external point of view - perhaps, that of the man on the Clapham omnibus -
no transformation occurs.

(beware of the no lawyers who live at my house)

I feel that I have to echo a few of the comments here.  I started to read the article and
wonder what on earth it was going on about?  Pretty poor, and to be honest, if I really wanted
to follow that kind of thing I'd go to Groklaw for details on it.

So why was this the main article on the front page of LWN?  Surely a link on the news page was
enough, there is more than enough Linux related items going on at the moment.