It's only piracy if YOU make the copies - see?

[David Farber <dave () farber net>]

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From: Randall Webmail [rvh40 () insightbb com]
Sent: Thursday, April 03, 2008 6:45 PM
To: David Farber; dewayne () warpspeed com
Cc: johnmacsgroup () yahoo com
Subject: It's only piracy if YOU make the copies - see?

Judge Rules Plagiarism-Detection Tool Falls Under 'Fair Use'
The Chronicle of Higher Education, 8.4.4
http://chronicle.com/weekly/v54/i30/30a01301.htm

By JEFFREY R. YOUNG

A federal judge has ruled that a commercial plagiarism-detection tool
popular among professors does not violate the copyrights of students, even
though it stores digital copies of their essays in the database that the
company uses to check works for academic dishonesty. The decision has
implications for other digital services, such as Google's effort to scan
books in major libraries and add them to its index for search purposes.

The lawyer for the students who sued the company said he plans to appeal.

Judge Claude M. Hilton, of the U.S. District Court in Alexandria, Va., in
March found that scanning the student papers for the purpose of detecting
plagiarism is a "highly transformative" use that falls under the fair-use
provision of copyright law. He ruled that the company "makes no use of any
work's particular expressive or creative content beyond the limited use of
comparison with other works," and that the new use "provides a substantial
public benefit."

The case has been closely watched by the thousands of colleges who use the
plagiarism-detection tool, called Turnitin, as well as by opponents of the
service, who hope to prevent professors from becoming anticheating police.

In March 2007, four high-school students — two in Virginia and two in
Arizona — sued iParadigms, the company that runs Turnitin, arguing that
the company took their papers against their will and profited from using
them. The students' high schools required papers to be checked for
plagiarism using Turnitin, and the service automatically adds scanned
papers to its database. The company boasts about the size of its database
as a selling point, and colleges pay thousands of dollars a year to use
it. The students sought $900,000 as compensation for six papers they had
submitted.

Judge Hilton seemed unmoved by nearly all the students' arguments.
"Schools have a right to decide how to monitor and address plagiarism in
their schools and may employ companies like iParadigms to help do so," he
said in his 24-page ruling.

More Issues to Explore

"I'm definitely appealing," said Robert A. Vanderhye, a retired lawyer in
Virginia who took on the students' case pro bono. "I am positive that the
appellate court will reverse" on the fair-use issue, he added.

The judge, he continued, "copied" the company's brief. "He didn't even
consider any of our arguments," said Mr. Vanderhye.

Specifically, Mr. Vanderhye said, the judge did not address whether or not
Turnitin violated federal student-privacy laws by allowing users of the
service to see papers that show students' names along with the names of
their instructors and other personal information. If the tool finds that a
newly submitted paper contains material that matches papers already in the
database, it gives the instructor the option of retrieving the old paper
for a detailed comparison.

Katie Povejsil, vice president for marketing at Turnitin, said the company
was "delighted" by the ruling.

"This was a very important case for us," she said. "This clears up some
questions" in customers' minds about the legality of the product.

Peter A. Jaszi, a law professor at American University, said the judge's
argument that the plagiarism tool is covered by fair use because it is
transformative may well stand up to an appeal.

"However, I would expect that, on appeal, the lawyers for the plaintiffs
might explore a wrinkle that the judge doesn't really address in the
opinion," he said. "That is whether or not a new use, a use of copyrighted
material for a new purpose, is an effective or promising use." Mr. Jaszi
said previous courts have argued that how beneficial a use of copyrighted
material is helps determine whether it is covered by fair use.

"The big debate about Turnitin, as far as I can tell," said Mr. Jaszi, "is
about whether it's a good tool."

The decision could bode well for Google. The company has been sued by
groups representing publishers and authors who argue that the company is
violating their copyrights by digitizing their books without express
permission. Google contends that, because its digital copies are for the
purpose of providing an index, it is essentially transforming the
material.

"If this opinion, as it stands, were to be endorsed on appeal, it can only
help the cause of Google Library," said Mr. Jaszi.

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