Fair Use Affirmed In Turnitin Case

Hugh Pickens writes "The Fourth Circuit Court of Appeals has issued an opinion affirming a ruling that will be cheered by digital fair use proponents for allowing a fair use of students' work when their teachers electronically file students' written work with the turnitin.com Web site so that newly submitted work can be compared against Turnitin's database of existing student work to assess whether the new work is the result of plagiarism. The court stepped through the fair use analysis, dropping positive notes that affirm commercial uses can be fair uses, that a use can be transformative 'in function or purpose without altering or actually adding to the original work,' and that the entirety of a work can be used without precluding a finding of fair use. Techdirt suggests that all of these points could have been helpful to Google in defending its book scanning efforts, 'since it could make pretty much the identical arguments on all points.' Unfortunately Google caved in that lawsuit and settled, 'denying a strong fair use precedent and making Google look like an easy place for struggling industries to demand cash.'"

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[account_deleted]

Comment removed based on user account deletion

Copyright? Or privacy?

[pleappleappleap]

I understand and largely agree with the ruling, but isn't there another issue? Do I have any right to have my (quite possibly deeply personal) ideas kept private from this company (TurnItIn)? Do I have an expectation of any level of confidence between my teacher and myself?

Might this lead to another argument in this kind of case?

Re:Economic impact

[postbigbang]

Google directly has an effect on my royalty checks. For that, they've injured me, and the effort I went thru to produce ten books. They have yet to pay me for that abuse.

In the case of fair use for term papers and the like; their commercial value is less clear, but in one swoop, the court killed any commercial return for these works. That's a bit onerous.

Re:Google != Turnitin

[UnknowingFool]

This case is not an exact copy of Google's issue but it helps Google. This case helps establish that using all of a work may still be considered Fair Use. Since Google was only using part of a work and mostly for excerpts they now have much more legal support by citing a precedent. Google probably folded originally because there were no precedents. When building a legal argument it helps to have precedents of similar cases or related cases. Many times there are not exact cases that have been decided, especially at the Federal Circuit Court of Appeals level.

Re:Google != Turnitin

[Maximum Prophet]

That's a great idea. I'd willing submit my old papers to TurnItIn, then leave them where students could plagiarize from them if I'd get some money for it every time they got caught.

Re:Economic impact

[DrLang21]

It could also be argued that if a student set up a service where they sold copies of their class work for other students to turn in as their own, and for educators to buy copies to identify those students attempting to copy, then Turnitin would be directly infringing on their copyright. The plagiarism in this case would not be illegal, since purchasers have been given permission by the author to claim credit for the work. Would Turnitin still be considered fair use?

Revenue model

[DomNF15]

Please correct me if I'm wrong but it seems that Turntin's source of revenue is based on a database of work created by other people (students). It would only seem fair that, regardless of whether or not the work was published, the authors should receive some kind of compensation for Turntin's use of their paper(s), since without these papers, they would not have a service to offer.

Re:What fair use? It's not even published.

[Anonymous Coward]

They are not the student's private papers. They were disclosed to someone else (the professor) for evaluation. You're right that they aren't published and they aren't public either, but "evaluation" certainly includes "evaluating the possibility of plagiarism". If turnitin.com were making the content of papers available to others or publishing themselves, that might be an issue, but they aren't.

Worst case (if this case had gone in favor of the student), professors would subsequently insist that in order for papers to get a mark the student must allow it to be submitted to such evaluation services. Sign the permission slip or no evaluation for you!

It's got nothing to do with Google, though.

Case should be against the schools

[Anonymous Coward]

Even if Turnitin.com is not violating copyright, then surely the schools and teachers are violating copyright by sending a complete copy of your work to Turnitin. The school is making and distributing a digital copy of the work which should not fall under fair use.

Now, writing an essay for your class constitutes work for hire, the school doesn't have the right to distribute this work or make copies of it as they necessarily must do in order to use the turnitin service.

My experience with Turnitin.com

[WiiVault]

This is an example of a tool that is far too powerful for the people intended to use it and therefore distructive. I remember getting chewed out by a teacher because I had a 2% match on a 10 page paper. Things like "that is" "before that" ect. were interpreted as plagiarism because somebody on the face of the earth had written them before. Oh course the dumbass teacher saw the 2% and failed me on the paper, which I had to fight all the way to the top of the school, where thankfully somebody bothered to check it out and realize I was being burned at the stake. For my remaining years I was considered somebody to watch thanks to this service and the brain dead people who use it.

Re:Plagiarism takes yet another hit

[LotsOfPhil]

Certainly trust between student and teacher is important. I don't agree with you that checking (just checking) for dishonesty assumes that the instructor thinks the student is dishonest.
If the instructor reads a paper and thinks "that is very similar to one I got last semester" then it is okay for him to check, do you agree? (this would be the "something about a specific paper calls it into suspicion" part). So the instructors brain can run the diff command. But if the instructor automates the process and checks against a broader audience via Turnitin that destroys trust?
What if the instructor had a local version of Turnitin's DB. The only papers in there are ones past students have turned in. In that case how is an instructor using Turnitin-local different from one with perfect memory and sterling pattern recognition skills?

I don't see how you can even consider the possibility dishonesty without "assuming" it under your strictures. Can you tell me how a paper would be suspicious without the instructor assuming plagiarism in some way?

Re:Economic impact

[ajs]

Google directly has an effect on my royalty checks.

Oh, it was a direct effect? That means, of course, that Google negotiated your royalty checks down with your publisher?

Oh, you meant that there was an INdirect impact via a reduction in sales due, in part, you suspect, to Google making portions of your work available online.

Of course, you haven't done anything even approaching a rigorous study to confirm any of this. You don't even have a control, do you? You just have "I'm not making as much money as I think I should be."

That said, welcome to the nature of fair use. Fair use does impact sales. People who would otherwise purchase a book, in some cases (not all) are people who instead go to a library or borrow from a friend or leaf through a copy on someone else's desk or buy it used (first sale... now there's something that impacts your pocket!)