[Air-l] turnitin issue

[burkx006 at umn.edu]

On Mar 12 2007, Alexis Turner wrote:

> In response to the original question - is there precedent - I think the 
> closest thing could possibly be the Google cache copyright case that was 
> closed last year (in which Google was sued under the auspices that its 
> caching function breached a web page creator's copyright).

No. The decision is not irrelevant, but also not really on point. As I 
mentioned earlier, I have analyzed the most relevant precedent here in the 
context of Google Book project:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=949937&high=%20mereology

specifically, the Matthew Bender and Tasini cases. The Google v. Perfect 10 
and Kelly v. ArribaSoft holdings also have some bearing.

Turnitin's strongest argument is that their database is transformative and 
contains no copies of the papers, only relational data *about* the papers. 
The hashes have no separate value other than for plagiarism detection -- 
the hashes are not substitutes for the papers in the market (assuming there 
is any market for student papers). There is a long line of cases holding 
that intermediate, temporary copying in the process of creating a 
transformative work is fair, bolstering the argument that the intermediate 
copy is fair.

That argument almost perfectly parallel's the Google Book project 
rationale. The major difference, as I mentioned earlier, is that the public 
benefit argument for Turnitin is not as strong.

DLB

-- 
Dan L. Burk
Oppenheimer, Wolff & Donnelly Professor
University of Minnesota Law School
229 19th Avenue South
Minneapolis, MN  55455
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