[Air-l] turnitin issue

[burkx006 at umn.edu]

Hi Doug --

First, I agree about the separate issue of instructors managaing 
relationships with students.

As far as the copyright question goes, no fair use configuration is *ever* 
resolved until litigated. But that doesn't mean that we can't do a good 
extrapolation from decided cases. And one thing the Supreme Court has been 
fairly clear on is that the commercial/non-commercial distinction is not 
determinative, or even very important, in fair use. So that doesn't really 
count against Turnitin or for Google on the analysis.

If there is a difference between Google Books and Turnitin, I would say 
that it is in the public benefit of the resulting database. The potential 
public benefits of the Google digitized library are enormous; the public 
benefits of the Turnitin database are much more modest. DLB

On Mar 9 2007, Douglas Eyman wrote:

>Dan,
>
>thanks for this cite -- your work on the Google Books issues is really 
>interesting (especially for those of us who are interested in both IP and 
>database issues).
>
> But I'll have to disagree with your disagreement a bit :) -- Google 
> Books' economic model doesn't currently charge users for access to the 
> text (and they restrict it as well), whereas Turnitin.com does charge 
> directly for access to the copyrighted works in its database. I think it 
> is certainly feasible to make a kind of fair use case, but I'm less 
> concerned about that issue than how instructors and institutions manage 
> their relationships with students through the lens of using the system. 
> (And besides, given that there has been no litigation that has resulted 
> in a ruling on whether Turnitin.com's use is indeed fair use, it remains 
> an unresolved (an unresolvable until litigated) question.)
>
>Doug
>
>burkx006 at umn.edu wrote:
>> On Mar 8 2007, Douglas Eyman wrote:
>> 
>>> If you put in a substantive amount of the "plagiarized text," the hash 
>>> that is stored is output as identical to the original work that has 
>>> been collected by the company. In other words, if you took all of a 
>>> book that someone else has written and put it into a database, if when 
>>> you get the output it reads the same, then the IP issues are still the 
>>> same
>> 
>> I'm afraid I tend to disagree -- that is not what the cases say 
>> (specifically, see here: 
>> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=949937&high=%20Mereology 
>> )
>> 
>> What you have described is essentially the Google Book Search project. 
>> The strongest argument for Turnitin as "fair use" is the one that Google 
>> has asserted.
>> 
>> DLB
>> 
>> 
>> 
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-- 
Dan L. Burk
Oppenheimer, Wolff & Donnelly Professor
University of Minnesota Law School
229 19th Avenue South
Minneapolis, MN  55455
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