[Air-l] turnitin issue

[Hugemusic]

Dan said:

> 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.

Actually, Turnitin has posted an extensive analysis of these issues as PDFs 
(pertaining to each country of operation) on their website at 
http://www.turnitin.com/static/usage.html.  I've only read the 10-page 
Australian version, but it seems that Turnitin's strongest argument is, 
firstly, to claim "Service Provder" status and therefore "Safe Harbour" 
provisions under the DCMA and secondly, to ensure that all submissions of 
student works are covered by a non-exclusive licence.  In other words, all 
student work submitted is correctly licenced and hence THERE IS NO 
INFRINGEMENT OF THE STUDENTS' COPYRIGHT when the copy is made.

*Of course* Turnitin makes a copy of the paper - they don't seem to dispute 
this - but their argument is that they're entitled to because they're a 
service provider and that in any case, the students give them permission to 
copy the papers.  Whether or not it's a hash and whatever a hash is are 
completely irrelevant. Stop ignoring the obvious.

What is interesting, though, is the reliance of Turnitin on the universities 
informing students that their work will or might be submitted and what this 
means ... that scares me a bit.  They also rely on jurisdictional issues by 
claiming that any "reproduction if it is stored on the Turnitin server while 
it is subjected to the checking process" performed is "not performed in 
Australia" (it's done in Oakland, California), hence Australian Copyright 
laws cannot apply. That might be interesting to challenge.

There is also a supplementary opinion directly addressing the issues I 
raised in my last post of the possibility of the copy (ie the "hash", which 
they refer to as a "digital fingerprint" being an "adaptation" (or 
"derivative work" as Dan discussed) and of the derivation of commercial 
benefit from the students' work. This opinion is a response to comments by 
the President of the Melbourne Postgrad Students Assn in The Australian 
newspaper and they conclude it is unlikely that the hash is an adaptation 
for the purposes of the Copyright Act 1968, and that, in any case, it 
happens in Oakland.

In all of this, the lawyers' only reservation seems to be over the question 
of whether, in the absence of an explicit licence granted by the student on 
submission of their assignment, an implied licence is granted and what this 
might cover.  They conclude that it is most likely that "an implied license 
exists for assessors to utilize a plagiarism service such as the one 
conducted by Turnitin."  They suggest that the best risk-minimisation 
strategy is to get the students to sign a licence on their submission cover 
sheet ...

If a licence exists for a copy to be made, there is no infrigement.  QED.

Which brings us back to the point of whether a uni can reasonably and 
ethically expect students to grant such a licence as an administrative 
proceedure - but that's discussed elsewhere.

Cheers,
Hughie