UPDATE (3/27/08): This case has been decided.
There are entrepreneurs who come up with good ideas for services and products, and entrepreneurs who come up with good ideas for lawsuits against the first group.
Unfortunately, Ted doesn’t spend any time applying his considerable legal talents to the question of whether the lawsuit has any merit or the more important question of whether Turnitin is doing anything wrong here. I can’t imagine an entreprenuer’s idea to be a “good” one if it’s flatly illegal. I’d like to do what Ted didn’t. From Turnitin’s web page, here’s what they do:
Every paper submitted is returned in the form of a customized Originality Report. Results are based on exhaustive searches of billions of pages from both current and archived instances of the internet, millions of student papers previously submitted to Turnitin, and commercial databases of journal articles and periodicals.
Emphasis mine. The company takes all the papers submitted to it, and inserts those papers into a proprietary database which it then uses for commercial gain. Apparently, the company also uses excerpts from its database in its reports, where those excerpts have been re-used by a later author.
Assuming for a moment that high school students’ papers have the required originality to acquire copyright protection — and of course they do — does the Turnitin method infringe the copyrights of those students? To the extent that Turnitin 1) copies the papers, 2) distributed the papers, or 3) creative derivative works of the papers, it does infringe. I’m having a hard time imagine how the company could do all it says it does without doing all three: copying, distributing, and creating derivatives.
Does Turnitin have a valid defense? There are two likely possibilities: fair use, and license. License is the easiest to dispose of: the students did not choose to submit their papers to the company; their school did. Unless there’s some kind of voluntary written agreement by the students to participate in the program, I doubt there is anything here that could be considered permission by the students to have their work used.
Fair use is a slightly tougher question. The factors courts look at are:
- Character of the use;
- Nature of the work to be used;
- How much of the work is used; and,
- What effect would the use have on marketing of the work?
In this case the answers are: 1) commercial; 2) covers the whole spectrum from factual to creative; 3) complete use in the database, but excerpted use for reports; and 4) probably minimal, as few of these papers would ever see commercial publication.
Many courts will apply the fourth factor more heavily when considering fair use, so it’s impossible to predict exactly how a court would rule on this. I suspect, though, that the involuntary use of the complete papers for financial gain would, at least in some courts’ eyes, fall outside the fair use realm.
At the very least, these students can make a case that their copyrights have been infringed. Turnitin may present a successful defense, but that wouldn’t render the students’ claims frivolous in any way. Ted’s half-hearted slap at the plaintiffs is probably undeserved: their case has arguable merit, and it’s not being pushed by some lawyer just out to make a buck. According to the Post, he’s working pro bono. (Although it’s not impossible for such work to result in a fee award from the courts, it’s a pretty risky way to earn a living.) AlI can say is, if it were my papers being submitted, I’d be pretty pissed too.