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Turnitin and fair use

Turnitin and fair use

Posted Apr 17, 2008 7:43 UTC (Thu) by Ross (guest, #4065)
Parent article: Turnitin and fair use

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.


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Turnitin and fair use

Posted Apr 17, 2008 15:51 UTC (Thu) by lysse (guest, #3190) [Link]

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)

Clapham omnibus

Posted Apr 17, 2008 17:06 UTC (Thu) by Max.Hyre (guest, #1054) [Link]

For us non-Brits, the man on the Clapham omnibus is the legal standard of your average Joe—``the man in the street'' in the U.S. I believe he's legally called ``the reasonable man'' in our courts.
(beware of the no lawyers who live at my house)
Jon, can you arrange to have ``IANAL'' prefixed to all comments for this story.¹ :-)


¹(Of course, if you are a lawyer, you may delete it.)

Turnitin and a minor's power to contract

Posted Apr 18, 2008 3:24 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

There was no claim in this case that the school entered into a contract on the students' behalf, and it couldn't anyway for something like this.

Each student entered into a contract by clicking "I agree" to a statement that he would take responsibility for any damage that occurred to to him through the use of the web site.

Contrary to popular belief, a minor in the US can enter into a contract. It's just that, traditionally, he has the power to disaffirm the contract any time he wants before he becomes an adult. Traditionally, he could even keep the benefit of the contract without holding up his end. E.g. a minor bought a car, wrecked it, and was able to get back the money he paid for it. But there is a trend against allowing minors to use that tool so recklessly. Many states, including Virginia, have an "equity" rule that when the minor disaffirms the contract, he has to give back any enrichment he got. In the Turnitin case, the students had already availed themselves of the privilege of using the web site and could not give it back. So they can't disaffirm the contract.

While we're on the subject, some other of my favorite little-known facts of US child law. A child can own property. A parent does not own a child's property. (But he has the power and responsibility to manage it for the child's benefit). A child can sue and be sued (his parent represents him). A parent is not responsible for damage his child does by accident (and the child often isn't either, since we expect kids to make mistakes).


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