[Air-l] turnitin issue

[burkx006 at umn.edu]

On Mar 12 2007, Hugemusic wrote:

>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 

This has nothing to do with the copyright status of their database -- it 
goes to access of their website. The safe harbor provisions address 
vicarious and contributory liability, not direct liability.

And, even if we are thinking in terms of third party liability, the safe 
harbor provisions have a scienter requirement that would make them 
inapplicable.

>and secondly, to ensure that all submissions of 
> student works are covered by a non-exclusive licence. 

Which, of course, they don't need if there is no underlying copyright 
problem. You can't address the licensing question until you have resolved 
the question of the underlying rights.

> *Of course* Turnitin makes a copy of the paper - 

That is a different question than whether the hash is a copy.

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.

No, it is the key issue to this and to a range of other database questions.

>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. 

Probably wrong under conflicts principles.

> 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." 

This depends on the reasonable expectations of the parties. A few years 
ago, it would have been fairly easy to argue that the students' expecation 
did not extend to copying by a plagiarism service. Of course, the more 
people use Turnitin, the more likely it becomes a reasonable expectation. 
DLB


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