Fair Use, Turnitin, And... Why Google Never Should Have Caved On Book Scanning

from the bad-news-all-around dept

Mon, Apr 20th 2009 11:10am — Mike Masnick

Last year, we wrote about a district court decision that noted iParadigm's popular Turnitin plagiarism checker service wasn't violating copyright by adding every student's paper to its database, noting that this was fair use. Wired points out that an appeals court has upheld this ruling and links to Thomas O'Toole's quick summary of why this is fair use:

The court stepped through the fair use analysis, dropping positive notes here (commercial uses can be fair uses), here (a use can be transformative "in function or purpose without altering or actually adding to the original work," citing Perfect 10 Inc. v. Amazon.com Inc.), and here (fact that turnitin.com used the entirety of the plaintiff's work did not preclude finding of fair use). And it turned back a lot of other, small-bore challenges to the district court's fair use finding.

While O'Toole rushes through these points, they're actually pretty important, since they're quite often misunderstood by people (even copyright lawyers) who claim that commercial use isn't fair use, or that using an entire work can't be fair use or can't be transformative. In this case, the court lays out why none of that is true. When the original decision came out, I suggested that all of these points could be helpful to Google in defending its book scanning efforts, since it could make pretty much the identical arguments on all points. It's scanning was a commercial use, but transformative (it was for indexing/searching books, not reading them), it was making use of the entire work, but again, in a transformative way.

Unfortunately, as we all know, Google caved in that lawsuit and settled -- though, now we're watching as many are challenging whether the settlement terms are legal or reasonable. I still think Google should have stuck with the pure fair use defense, showing that its use was transformative and different - similar to just indexing websites for linking purposes. Not only is it unfortunate that Google gave this up, because it's one less strong precedent over fair use, but it's now opened up the ridiculous claims by a bunch of other industries (newspapers, recording) demanding that Google "settle" with them as well, and hand over cash. Google's decision to back down was a big mistake, not just in terms of screwing over others trying to scan books (what most of the current complaints are about), but in denying a strong fair use precedent and making Google look like an easy place for struggling industries to demand cash.

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Filed Under: commercial use, fair use, four factors, turnitin
Companies: google, iparadigms, turnitin

25 Comments

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Anonymous Coward, 20 Apr 2009 @ 11:58am

yeah, Turnitin is fair use, but I still hate the site or I guess I should say that I hate the way that teachers use the sight. most teachers don't realize that turnitin is just one tool among many that should be used to prevent academic dishonestly and that it can give false positives (independent creation anyone?). They also use it to stop students from turning in the same essay to different teachers, something that should be perfectly acceptable.
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- Anonymous Coward, 20 Apr 2009 @ 3:07pm
  
  Re:
  They also use it to stop students from turning in the same essay to different teachers, something that should be perfectly acceptable.
  
  You just gave me an idea of a way students could make it difficult for teachers to use Turnitin: They could just turn their own papers in to Turnitin under a pseudonym before turning them to their teachers! Of course, they would need to first establish proof that they were indeed the original author but there a ways to pretty well do that (and I don't want to get into the details here, thanks). Now if enough students began doing that, effectively polluting Turnitin's results, Teachers would probably have to quit using it! I mean it probably wouldn't take many well publicized cases of false accusal to do the trick.
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  - Todd, 21 Apr 2009 @ 12:00pm
    
    Re: Re:
    Or, the teachers just fail the students. Nothing makes you look more guilty than trying the subvert the system for selfish reasons.
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    - Anonymous Coward, 22 Apr 2009 @ 5:18pm
      
      Re: Re: Re:
      Or, the teachers just fail the students.
      
      Oh really? And just what do you think they could fail them for?
      
      Failing students for no good reason can get a teacher in a lot of hot water, or even fired, while the student gets their work reevaluated more objectively by a review board. I've seen it happen.
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- John, 21 Apr 2009 @ 11:53am
  
  Re:
  http://turnitin.com/static/Knowledge_center/submitting_as_a_student.asp
  
  It uses the students name and email address to determine authorship and will automatically exclude other work by the same author as potential plagiarism. Note, you can still be caught in it if you use a different email address and the same name, so try to be consistent.
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- Doug Cullen, 21 Apr 2009 @ 1:21pm
  
  Re:
  The question of using a paper for more than one class is a good one.
  
  What is the purpose of writing a paper? Is it the product or the process. In nearly all school settings the paper itself is completely secondary to the research, editing and refinement that is the real purpose. Reusing a paper avoids the work.
  
  Should a budding basketball player shoot 50 fouls shots a day, or shoot one really good one, video it and just replay it 50 times a day?
  
  In the end its the same - it is the practice that produces the results.
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- shdwsclan, 30 Sep 2009 @ 3:54pm
  
  yes you can
  Actually, they cant do that
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C.T., 20 Apr 2009 @ 11:59am

Can't fault Google for settling
I agree with you that it is a real shame for society that Google didn't litigate the fair use issue for all of the reasons you have stated. However, I am not sure I can follow you in your conclusion that it was a mistake from their perspective. The issue of what constitutes a transformative use is hotly contested and varies in each circuit. The Google case was being litigated in the 2nd circuit... and their case law on what constitutes a transformative use dramatically more restrictive than the 4th circuit's (where the Turnitin case was litigated). It would have been an extremely close case under the 2nd circuit's law. When you couple that with the fact that Google would be facing up to $4 BILLION in statutory damages if they lost, it is easy to see why they settled.
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- Freedom, 20 Apr 2009 @ 2:35pm
  
  Re: Can't fault Google for settling
  Interesting points. Wouldn't this have eventually lead to the Supreme Court then? If so, wouldn't that be a good thing? At least the rules/laws would be known and you wouldn't have to worry about what circuit you are if you want to do a book scanning project.
  
  I can understand a short sighted business decision or at least one done that made sense from a numbers stand point to them. However, I think we all hold Google to a higher standard and them doing settling the case just showcases how Google is now just like every other corporation.
  
  Freedom
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Matt, 20 Apr 2009 @ 12:05pm

weakening itself
all the stuff you have said before about how when a company gives in it only hurts themselves in the long run, is now occurring. Look at google starting to have trouble with things due to the deals they've made. Surprise? No.
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- Anonymous Coward, 20 Apr 2009 @ 12:57pm
  
  Re: weakening itself
  At least they have a chance for the long run to matter.
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Micael Bogar, 20 Apr 2009 @ 12:29pm

Media Literacy Fair Use
Thanks Mike for this article. We at the Center for Social Media are also invested in making sure that educators can know their fair use rights. Back in November we released our Code of Best Practices in Fair Use for Media Literacy Education that helps teachers and students understand their fair use rights in a concise clear format. (www.centerforsocialmedia.org/medialiteracy)

Regarding Google's decision to settle out of court, it is a bit disappointing. We would have loved to have seen them take this all the way and win it. Thanks C.T. for the information on the different circuits and their interpretations of fair use. These things can get quite tricky when it comes down to a judge's political leanings as the final issue.

But for now, it's important that we are all educated on our fair use rights no matter what "side" we're on.
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pg, 20 Apr 2009 @ 12:55pm

Turnitin may need to refine their algorithm for checking plagiarism. It once told me that I had 'plagiarized' from a site and when I clicked on the link for said site it turned out to be a porn site. I can assure you I didn't take any ideas from my term paper on Surveillance and Civil Liberties from a porn site!
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- Anonymous Coward, 22 Apr 2009 @ 5:21pm
  
  Re:
  I can assure you I didn't take any ideas from my term paper on Surveillance and Civil Liberties from a porn site!
  
  Maybe you both plagiarized from the same source.
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charlie potatoes, 20 Apr 2009 @ 2:39pm

fair use my ass
I have a site at www.newworldessays.com and write 'sample' dissertations for students, so they can see the proper way to cite and format their own work. turnitin.com has dozens, if not hundreds, of my works (I retain copyright) in their program and are charging for their service. Irrespective of what anyone thinks about what I do, I fail to see how using my work to make them a profit can be considered fair use of my work. Further, there is the extortion factor, when professors threaten students with expulsion should they refuse to sign a consent form to allow their works to be put into a computer data base. Let the professor get off his lazy ass and check references himself. My papers are not plagiarized so there is never an issue, it's simply the principle of the matter. I resent that they have a 'right' to hold my works in their base for as long as they wish.
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Hulser, 20 Apr 2009 @ 2:54pm

Irrespective of what anyone thinks about what I do, I fail to see how using my work to make them a profit can be considered fair use of my work.

A couple of questions to clarify your points...

1) By this, do you mean to say that you don't care what the law is or just that you disagree with people who believe the law allows for Turnitin's use of your works?

2) If the latter, on what grounds to you disagree? As the TD post points out, just because a profit is made, it does not mean that fair use can't apply. Based on your subject line, it sounds to me like your opinion is based more on what you believe the law should be rather than what it is.
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Anonymous Coward, 20 Apr 2009 @ 3:21pm

Opportunity Knocking
A lot of people have speculated that part of Google's reasoning in the settlement was that by "agreeing" that there needed to be fees paid to publishers before scan-indexing library books, they could effectively lock out smaller competitors that couldn't afford such fees. I think that what Google overlooked is that there may very well be some competitors out there who actually have the moral fortitude (unlike Google) to stand up for their fair use rights. Such a competitor could then proceed to use those rights to scan-index books free of charge while Google has already signed away its own rights to do so. Opportunity knocking! Who's going to answer.
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- Hulser, 20 Apr 2009 @ 7:49pm
  
  Re: Opportunity Knocking
  Weird timing. Read this story about the Internet Archive asking the judge to give them the same protection as Google...
  
  http://arstechnica.com/tech-policy/news/2009/04/internet-archive-wants-book-copyright-i ndemnity-like-google.ars
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tjotoole, 20 Apr 2009 @ 4:17pm

digital fair use issues in Turnitin
These are all good points, Mike. Wish I had made them myself. The problem is that Web users have so far depended on online intermediaries to assert their fair use rights for them (Google, device manufacturers, Internet service providers, etc). There's always the chance that the online intermediary is going to find a better way than defending user rights to make a buck.
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CleverName, 20 Apr 2009 @ 5:52pm

Question
Does Turnitin house a large percentage of the worlds literary works in its database? I'm sure some students would try to copy from them without providing a reference.

If so, I would think that some big name publishing corp would not be happy about it, or would want to monitize their IP. Does Turnitin havve some arrangement with them?

If not, why? If it is ok, then what are they waiting for?
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Anonymous Coward, 20 Apr 2009 @ 8:22pm

What does this mean?
Q - What are they selling? Is Turnitin selling the contents of the DB or just a hash of each individual entry?

from
http://en.wikipedia.org/wiki/Turnitin

Since Turnitin archives all papers it receives and sells its services, including that database, for profit, ...
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Bri (profile), 22 Apr 2009 @ 10:32am

Fair Use... pffft
While profitability is not a determining factor for fair use, I would say that Turnitin's entire business model hinges solely on the "fair use" of these papers. Since they are making money off the uniqueness factor of each individual paper submitted, the fair use argument pretty much goes out the window.

There's a number of key points that sway this debate for me:
1. Is the key to your profitability, i.e., your business model, hinge upon the uniqueness of an author's work.
2. Is this work accessed often, weekly, daily, hourly.
3. Is the amalgamation of these works considered an asset to the company, i.e., if this data were lost would there be considerable financial loss to the company.

So in Turnitin's case you would find that their cash flow is tied to using the works, more specifically the uniqueness of each individual work. They likely access these works, or the data subset representing the work, on an extremely frequent basis. And if they lost their database of papers, they would be severely financially crippled.

So tell me, how is this fair use if I, the author, have lost control over how my original work is utilized?
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John, 22 Apr 2009 @ 4:08pm

Clearly you're not a student. Otherwise, you would realise injustice of being coerced into submission.
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