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

from the bad-news-all-around dept

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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Turnitin Found Not To Violate Student Copyrights

from the might-be-a-good-thing-for-Google... dept

Last year, we noted that some students were suing iParadigms, the makers of "Turnitin" the excessively popular plagiarism checker used by many colleges and high schools. The professors feed student papers into the system, and it returns a "score" judging how likely the paper is to be plagiarized. However, it also takes a copy of each paper and includes it in its database for future plagiarism checks. This annoyed quite a few students who felt that this was copyright infringement -- using their papers in a commercial database.

However, a court has now rejected the students' arguments and found that Turnitin does not violate the copyright of the students for a variety of reasons. First there is the fact that students had to agree to the terms of the service to use it -- even if they were forced to by their schools. However, the court finds that this is a problem for the schools, not Turnitin. But, much more interesting is the rationale for why storing those papers is considered "fair use." Among other things, the court found that Turnitin isn't using the papers for their creative meaning and even though it stores the entire document, it doesn't really publish a full copy of it for others to see.

That becomes especially interesting given the current lawsuit concerning Google's scanning of books from various university libraries, as it may be able to note the similarities in this situation to Turnitin's. There are some differences -- and clearly, the publishers will claim that the impact on the commercial value is quite different (despite evidence to the contrary -- but this ruling is likely to help Google's position at least somewhat.

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