[Air-l] turnitin issue

[burkx006 at umn.edu]

On Mar 12 2007, Charlie Lowe wrote:

>If the hash is substantive enough to prove plagiarism, then it seems the 
>defense that it's not the original text will fail. I would bet that a 
>128 bit rate MP3 has less of the original data of any wav file than that 
>hash, and no one would use that argument for saying that an MP3 is not 
>copyright infringement.

Hm, for some purposes the MP3 might not be. Copyright is not very well 
equipped to deal with the distinction, or the lack of distinction, between 
record data and relational data (nor between data and software). Under some 
parts of the statute, data that encodes a copyrighted work is treated 
differently than data *about* a copyrighted work.

(Can you explain the difference? I'm not sure I can. But courts, including 
the U.S. Supreme Court, seem to think they can.)

>Besides, the hash is a derivative work if it is not a complete version 
>of the original, and the students have clear rights of both ownership 
>and preparation of derivative works. That is, unless the hash is a 
>parody ;-)

It is not clear that the hash is a derivative work. Tasini and several 
other cases suggest that it is not a "copy" under the statute, that is, 
that it is not a fixation of the students' work of authorship. US courts 
are divided on whether a derivative work needs to be a copy or not.

My guess is that it is not a derivative work because it does not 
incorporate the students' original expression.

DLB

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