It almost seems like an April Fool's joke. The Washington Post reports that four high school students are suing Turnitin.com, a service that checks student papers for plagiarism, for copyright infringement. They're seeking $900,000 in damages -- the statutory maximum of $150,000 for each of six papers, which, naturally, the students registered with the Copyright Office (presumably) before turning them in. The crux of the students' argument seems to be that Turnitin "willfully" violated their "instructions" not to archive their papers in its database. Such instructions would, arguably, defeat any implied license that Turnitin might otherwise have had under the circumstances.
But while it may seem silly (at best) for the students to be "making a federal case" out of this, their lawsuit actually has potentially serious implications for electronic databases generally. What Turnitin is doing is not terribly different from, say, Google's library project or the many other such databases that libraries and scholars have been assembling in recent years. While all of these databases unquestionably make use of copyrighted material, they quite arguably are doing so in socially useful, "transformative" ways that have no appreciable impact on the copyright owners' ability to exploit the value of their works. In fact, if anything, Turnitin's own database would seem to have even less such impact, because it offers its users virtually no access at all to the source material. Thus, a win for these students could be bad news for fair use.
Comments (1)
I see a couple of ways in which TurnItIn is different from Google Books regarding fair use.
First, the material Turnitin is copying is unpublished, giving it stronger protection against allegedly fair uses. This fact makes the fourth factor analysis much less important, since the authors are being denied the right to decide whether or not to profit from their work, if possible.
Second, unlike Google, Turnitin is actually charging for access to the copied material, not merely selling advertisement on a site to which there is public access. This makes the claim of a social benefit, rather than a purely commercial use, much less persuasive.
I do see one important similarity, however. In both cases, the courts will have to decide whether simply re-purposing a work, rather than creating something that is new in itself, really is a transformative use. Kelly v. Aruba Soft points in this direction, but I am curious how far the courts will go down that road.
Posted by Kevin Smith | April 3, 2007 3:54 PM
Posted on April 3, 2007 15:54