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iParadigms Wins Turnitin Lawsuit

Turnitin LogoiParadigms, the company that offers the Turnitin service, which is popular among teachers and professors to help check student’s work for plagiarism, won a critical copyright infringement lawsuit filed by four students.

The students, who had had their works archived in the Turnitin database after being submitted for a check by their instructor, claimed that the service violated their copyright by storing their work without permission and using it as part of a for-profit business.

The ruling, embedded below, found that iParadigms had not violated the student’s rights. However, the logic behind the ruling is very interesting and may have implications that go far beyond iParadigms and plagiarism checking software in general.

Reasons For The Ruling

The students, for their part, had two different elements to their complaint.

  1. That the contract they signed with iParadigms, which was required as part of taking the course, was invalid.
  2. That the use of their work in the database was a violation of their copyright.

The judge, Claude M. Hilton, ruled in favor of iParadigms on both elements and dismissed the case.

In regards to the first element of the claim, the judge ruled that the agreement was valid and that it protected iParadigms from the lawsuit. The license, delivered in the form of a click-wrap, said in part the following:

“In no event shall iParadigms, LLC and/or its suppliers be liable for any direct, indirect, punitive, incidental, special, or consequential damages arising out of or in any way connected with the use of this web site….”

According to the ruling, the students could not escape the license simply because they were minors since they benefited from the agreement. The agreement was not coerced since options were available and, according to the judge, the schools have the right to how to address plagiarism issues. Finally, student attempts to modify the contract by writing disclaimers on their paper did not alter the agreement.

But while Judge Hilton could have easily left the matter there and tossed the suit on those grounds alone, she also decided to offer insight on the fair use argument presented by iParadigms as a defense should the contract argument have failed.

On that matter, the judge said the following:

  1. While “iParadigms makes a profit in providing this service to education institutions its use of student works… iParadigms provides a substantial public benefit through the network of educational institutions using Turnitin.â€?
  2. That iParadigm’s use of the work was “Highly transformative” and similar to the Perfect 10 v. Google case. Thus, there is even less emphasis on the commercial aspect of Turnitin’s service.
  3. “It is clear that iParadigms’ use of the Plaintiff’s works has caused no harm to the market value of these works.”
  4. “Considering all four factors, the Court finds that the iParadigm’s use of the Plaintiff’s written works constitute fair use.

In short, the court ruled that the use of the essays in the Turnitin database was, very overwhelmingly, fair use and not infringing upon the students’ rights.

Implications for the Rest of Us

iParadigms LogoThough the ruling is an obvious defeat for the students, what it means for the rest of us is much less clear.

The most important elements of the ruling, namely the contract elements, have a very narrow application in that they are targeted toward students in colleges or universities. However, it does strongly reinforce the validity of click-wrap licenses and remind all of us of the importance of reading the terms of service for a site before we click “I Agree”.

Since the fair use decision relied heavily on well-known and closely-followed rulings, especially Perfect 10 v. Google, there is little new to the decision, especially as it impacts how Web sites interact with search engines and other databases.

However, the one “change” it might bring about is bolstering the legal protection of “private” plagiarism-checkign services. Companies such as Attributor and Blogwerx index the Web but not simply to aid in public searching of the Web, but to help their clients, from whom they profit, detect plagiarism of their work.

While the process is similar to Google, some had worried that the differences between these private search engines and the better-known ones could create issues. However, the fair use analysis in this case strongly favors such services.

Obviously each and every case will be weighed on its own merits, but in the area of fair use and search engines, there is a surprising amount of case law and it is fairly clear where the courts are likely rule, much more so than with more traditional fair use issues.

The good news is that this ruling makes it even more likely we’ll see great plagiarism-fighting services in the coming months and years. On the down side, it does mean that we can expect broader “private” database copying of our work.

But if the ruling is to be taken at face value, that isn’t much to worry about. Even the plaintiffs in the case were unable to show any harm to the market of their work.

It seems unlikely that, if called upon, we could show significant harm either, at least so long as the use of the work exclusive to the purpose of finding matches.

Conclusions

Legally, I think the ruling is very sound. All of the elements of the decision were based on previous legal opinion and were applied fairly. I think the judge in this case showed a great deal of understanding of the complexities of the issue and, though I was hard on iParadigms in my earliest writings on the topic, I feel that this was the appropriate ruling for the law.

However, that being said, there is an emotional response to this. It makes me uneasy that students participating in a public school can be forced to sign contracts, despite being minors, requiring them to surrender their work to be archived in a database for another party’s profit.

Though the ruling talks about choices that the student has, namely home schooling or private schools, and the benefit they obtain from the contract, namely passing the class, it is hard to see how, in practical terms, the students had much of either. They did not choose the school, they not choose to take the class and, for most, private school or home schooling is not a practical option.

As correct as the ruling was, it may be time to re-evaluate the rights a student has in their work within a classroom setting. Though I agree that schools should have the right to decide how to check their students’ work for plagiarism and that the fair use analysis was appropriate by itself, it seems to me that elements of this ruling might have implications that go far beyond just plagiarism checking software.

When courts can rule students have “choice” in required classes in a public school and gain “benefit” by simply allowing them to pass, they can push students to do many other things than agree to a clickwrap license. I find that worrisome.

It was the right ruling for the case, I just hope it does not have unintended consequences.

However, I would be very interested in hearing other’s thoughts about this.

Further Reading

iParadigms Earlier Press Release
©ollectenea’s Article

Read this doc on Scribd: iParadigms 03-11-08 Opinion

38 Responses to iParadigms Wins Turnitin Lawsuit

  1. Hey Jonathan,

    I think you brought up an interesting point when you presented the fact that students don't really have a choice. You're completely right. Giving a child the "choice" to submit his or her works to a company in order to pass a required class in the only school available to a student really isn't a choice at all. Unfortunately, lack of choice can be found at all stages of our education system. Students are told where to go to school, when they'll go to school, what classes they'll take, and what standards they have to reach in order to graduate. Parents are told what schools are available, how much they'll have to pay for those schools (regardless whether they have children attending those schools), and what educational opportunities are available. This is just a small list of the types of "choices" that are really available to parents today. I don't mean to argue against government education here (if you can't tell, I'm totally against the idea), I just want to point out that the problem you've brought up is a problem *everywhere* in our current system.

    Given that, I don't think that the lack of choice is a relevant issue in this copyright case. It is an essential point when discussing the rights of students in the government school system, but if we opened that door for this case I think it would take us far outside of the scope of this case. And hey, I'm happy to do that, but since I'm commenting on your blog I'll try to stay on-topic. :)

    So, while I agree with your concerns, I had the exact opposite emotional reaction to this story. I just don't see how the students rights are being taken away. It sounds ominous when the situation is described as minors being forced to surrender their works to another company, but let's be honest: We're talking about students turning in their homework for grading. The student already has to give his teacher his copyrighted works in order for the teacher to grade it. I don't have a problem with a teacher including this service in the grading process so long it is relevant to the grading process and so long as it is disclosed to the student. With the multitude of sources for plagiarism available to students online, I bet this service could be invaluable to any teacher that wants to be sure his or her students are really doing the work.

    What's next? Is a 13-year-old going to take his teacher to court because he was forced to hand in his book report? Or sue the teacher for royalties because the teacher read the book report aloud to the rest of the class?

    Anyway, thanks for the post. I like it when people bring up issues that make me think. :)

  2. Hey Jonathan,I think you brought up an interesting point when you presented the fact that students don't really have a choice. You're completely right. Giving a child the "choice" to submit his or her works to a company in order to pass a required class in the only school available to a student really isn't a choice at all. Unfortunately, lack of choice can be found at all stages of our education system. Students are told where to go to school, when they'll go to school, what classes they'll take, and what standards they have to reach in order to graduate. Parents are told what schools are available, how much they'll have to pay for those schools (regardless whether they have children attending those schools), and what educational opportunities are available. This is just a small list of the types of "choices" that are really available to parents today. I don't mean to argue against government education here (if you can't tell, I'm totally against the idea), I just want to point out that the problem you've brought up is a problem *everywhere* in our current system.Given that, I don't think that the lack of choice is a relevant issue in this copyright case. It is an essential point when discussing the rights of students in the government school system, but if we opened that door for this case I think it would take us far outside of the scope of this case. And hey, I'm happy to do that, but since I'm commenting on your blog I'll try to stay on-topic. :)So, while I agree with your concerns, I had the exact opposite emotional reaction to this story. I just don't see how the students rights are being taken away. It sounds ominous when the situation is described as minors being forced to surrender their works to another company, but let's be honest: We're talking about students turning in their homework for grading. The student already has to give his teacher his copyrighted works in order for the teacher to grade it. I don't have a problem with a teacher including this service in the grading process so long it is relevant to the grading process and so long as it is disclosed to the student. With the multitude of sources for plagiarism available to students online, I bet this service could be invaluable to any teacher that wants to be sure his or her students are really doing the work. What's next? Is a 13-year-old going to take his teacher to court because he was forced to hand in his book report? Or sue the teacher for royalties because the teacher read the book report aloud to the rest of the class?Anyway, thanks for the post. I like it when people bring up issues that make me think. :)

  3. Hey Jonathan,I think you brought up an interesting point when you presented the fact that students don't really have a choice. You're completely right. Giving a child the "choice" to submit his or her works to a company in order to pass a required class in the only school available to a student really isn't a choice at all. Unfortunately, lack of choice can be found at all stages of our education system. Students are told where to go to school, when they'll go to school, what classes they'll take, and what standards they have to reach in order to graduate. Parents are told what schools are available, how much they'll have to pay for those schools (regardless whether they have children attending those schools), and what educational opportunities are available. This is just a small list of the types of "choices" that are really available to parents today. I don't mean to argue against government education here (if you can't tell, I'm totally against the idea), I just want to point out that the problem you've brought up is a problem *everywhere* in our current system.Given that, I don't think that the lack of choice is a relevant issue in this copyright case. It is an essential point when discussing the rights of students in the government school system, but if we opened that door for this case I think it would take us far outside of the scope of this case. And hey, I'm happy to do that, but since I'm commenting on your blog I'll try to stay on-topic. :)So, while I agree with your concerns, I had the exact opposite emotional reaction to this story. I just don't see how the students rights are being taken away. It sounds ominous when the situation is described as minors being forced to surrender their works to another company, but let's be honest: We're talking about students turning in their homework for grading. The student already has to give his teacher his copyrighted works in order for the teacher to grade it. I don't have a problem with a teacher including this service in the grading process so long it is relevant to the grading process and so long as it is disclosed to the student. With the multitude of sources for plagiarism available to students online, I bet this service could be invaluable to any teacher that wants to be sure his or her students are really doing the work. What's next? Is a 13-year-old going to take his teacher to court because he was forced to hand in his book report? Or sue the teacher for royalties because the teacher read the book report aloud to the rest of the class?Anyway, thanks for the post. I like it when people bring up issues that make me think. :)

  4. Darren: You make a good point there. I guess, with that in mind, I see it both ways.

    As I said in my post, I think the decision is legally very sound though I do have some minor emotional concerns.

    What bothers me though isn't so much the rights the student surrenders when he or she turns in an assignment, but rather, the ones they surrendered when they sat the student down in the computer lab and forced them to sign the clickwrap license.

    If everything that Turnitin does can be covered by the implied license a student gives a teacher when turning in an assignment, there would be no need for that.

    There just seems to be something inherently wrong with having students sit down and sign an agreement with a third party under pressure of otherwise failing the class.

    The implied license may cover it and that is fine, but I don't think it is right to push students into an explicit one like that.

    Just my opinion though…

  5. Darren: You make a good point there. I guess, with that in mind, I see it both ways.As I said in my post, I think the decision is legally very sound though I do have some minor emotional concerns. What bothers me though isn't so much the rights the student surrenders when he or she turns in an assignment, but rather, the ones they surrendered when they sat the student down in the computer lab and forced them to sign the clickwrap license.If everything that Turnitin does can be covered by the implied license a student gives a teacher when turning in an assignment, there would be no need for that. There just seems to be something inherently wrong with having students sit down and sign an agreement with a third party under pressure of otherwise failing the class. The implied license may cover it and that is fine, but I don't think it is right to push students into an explicit one like that. Just my opinion though…

  6. Darren: You make a good point there. I guess, with that in mind, I see it both ways.As I said in my post, I think the decision is legally very sound though I do have some minor emotional concerns. What bothers me though isn't so much the rights the student surrenders when he or she turns in an assignment, but rather, the ones they surrendered when they sat the student down in the computer lab and forced them to sign the clickwrap license.If everything that Turnitin does can be covered by the implied license a student gives a teacher when turning in an assignment, there would be no need for that. There just seems to be something inherently wrong with having students sit down and sign an agreement with a third party under pressure of otherwise failing the class. The implied license may cover it and that is fine, but I don't think it is right to push students into an explicit one like that. Just my opinion though…

  7. bob says:

    I would like to say something on the matter. I attend college recently found out that all papers I submit through my online classes are automatically sent to Turnitin. I never signed an agreement with the University to allow this and have been doing it for that past two years I have attended, I’m not a big wave maker – but it bothers me a little, well a lot. When I confronted the University about it, they told me I should let each of my instructors know prior to turning in each paper that I wish to opt-out. It’s like pleading the fifth, it’s assumed your hiding something. I don’t cheat, and I’m not worried about that, but if I request to Opt-Out, I think my papers my be given more attention than not, “consider the attention a job CV would get if it was wrinkled and bearing a coffee stain” It doesn’t change the content just the attention it gets, and I don’t think for the best – typically! Just like when someone pleads the fifth – instantly they are under increased observation, and the assumptions that come from doing so.

    I do not think the excuse that the public school student as an option to be home schooled or sent to a private institution – last I checked minors had the choice of doing whatever mommy or daddy said, but society has changed a lot I guess. furthermore, are the parents of the student going to be fully reimbursed for their contribution to the school system; meaning, are they going to still be required to pay the portion of property tax that goes to the public school district, or any other tax for that matter that was required of them which was utilized by the school district? I doubt it!

    “It is clear that iParadigms’ use of the Plaintiff’s works has caused no harm to the market value of these works.”

    this logic also scares me. No market value, who is to say. I mean really who is to decide what has market value or not, and is that really the issue about value or marketability, or should a copyrighted work be allowed to be controlled by it’s author until the copyright expires? They have patent on selling peanut butter and jelly sandwiches, where is the marketability of that? I know I’m comparing apples and oranges but I hope you see my point.

    So why am I so happy that the students lost! Well, this case actually liberates information, in a way.

    I think I am going to open a business where I check for copyright infringement of copyrighted works. It will be great, I will record all over the air broadcasts to include; television, radio, ect. I will then allow anyone to submit work to me and I’ll check it for copyright violations. Since this will require extensively reviewing my collection/database to ensure no copyright infringement has taken place when compared to my own works, I will leave all inspected works in my database for future inspection of new materials.

    The interesting thing is, with turnitin is this, if the person submitting a paper that was plagiarized from existing copyrighted material. The submitter did not have the legal right to submit that material, nor does turnitin have the right to maintain it in their database. Isn’t that the same as keeping stolen property?

    I think people need to realize, with copyrights laws – YOU CAN’T HAVE IT BOTH WAYS!

    So if TURNITIN does not remove the marketability of a product by have a free copy of it, then why should I not be able to copy all the music I want? Music influences people, correct, music is a learning, molding, shaping, developing tool correct. It may be entertaining but learning often is! Learning the beats, the style, the theme, the messages, meaning, and intents of the art work -(the music.) Seems it should fit in fair use. Marketability – I’m broke I can’t afford music, I wouldn’t pay for. How does getting free music then lower the marketability of a product I’m not going to pay for nor will pay for… but should I have such music it would be a violation of copyright, even if I’m using it for my betterment, to ensure I don’t accidentally emulate the same copyrighted segments in my own music, or to just learn from it. You can bet people would be knocking on my door and taking me to court, for the mere possession of their works – but by demanding they have the right to control dissemination of that work. I’m glad they lost the case, but scared that we are going to have organizations for hire act as policing bodies/agents. I guess I have had way too much coffee and just rambling on and on, but…… I’m tried of people not allowing me access to knowledge and preventing my access to knowledge under the banner of copyright infringement, then on the same token not afford me the same right to restrict what, where, or whom, I choose to privilege my privileged copyrighted knowledge to.

    Ummm, here is a counter argument for lowering the marketability of the high schoolers papers. If there is a market to ensure that people are not infringing copyright laws by way of plagerism – and there is just such a market just check TURNITIN’s profits for doing just that, I think by allowing turnitin to utilize the created copyrighted works for free does just that lower their marketability. Wouldn’t it be nice if there was a company that said…. HEY WHEN YOU WRITE A PAPER, regardless the topic we will pay you 10 bucks, there would be a market really quickly wouldn’t there! Who knows you have to pay royalties every time you use knowledge -music/technology ect that is protected. Why should this be any different. How many college students would not love to be paid for each paper they allow to be used in such a manner. I know I would allow use of my last paper on the civil war for just such a cause, 10 bucks is better than nothing! Heck, I bet I could pay some of my book expenses for the semester.

    Think in 2003 they posted 10million in profits and 160million in 2007, I think there is a market for databasing and cross checking of copyrighted papers don’t you?. I think rather than stealing the papers they use for profit, they should at least pay something… again how many high school students would be happy to sell restricted use of their paper on the civil war for 10 bucks! at 10 bucks a paper for limited use license on 8 million papers that is only 80million dollars. I think paying for the products they use in their service is not unreasonable! I’m sure if the were making money doing this for the music industry somebody would be getting paid!

    Sorry for my random babbling, but would someone please make sense of what I’m trying to say!

  8. bob says:

    I would like to say something on the matter. I attend college recently found out that all papers I submit through my online classes are automatically sent to Turnitin. I never signed an agreement with the University to allow this and have been doing it for that past two years I have attended, I’m not a big wave maker – but it bothers me a little, well a lot. When I confronted the University about it, they told me I should let each of my instructors know prior to turning in each paper that I wish to opt-out. It’s like pleading the fifth, it’s assumed your hiding something. I don’t cheat, and I’m not worried about that, but if I request to Opt-Out, I think my papers my be given more attention than not, “consider the attention a job CV would get if it was wrinkled and bearing a coffee stain” It doesn’t change the content just the attention it gets, and I don’t think for the best – typically! Just like when someone pleads the fifth – instantly they are under increased observation, and the assumptions that come from doing so.

    I do not think the excuse that the public school student as an option to be home schooled or sent to a private institution – last I checked minors had the choice of doing whatever mommy or daddy said, but society has changed a lot I guess. furthermore, are the parents of the student going to be fully reimbursed for their contribution to the school system; meaning, are they going to still be required to pay the portion of property tax that goes to the public school district, or any other tax for that matter that was required of them which was utilized by the school district? I doubt it!

    “It is clear that iParadigms’ use of the Plaintiff’s works has caused no harm to the market value of these works.”

    this logic also scares me. No market value, who is to say. I mean really who is to decide what has market value or not, and is that really the issue about value or marketability, or should a copyrighted work be allowed to be controlled by it’s author until the copyright expires? They have patent on selling peanut butter and jelly sandwiches, where is the marketability of that? I know I’m comparing apples and oranges but I hope you see my point.

    So why am I so happy that the students lost! Well, this case actually liberates information, in a way.

    I think I am going to open a business where I check for copyright infringement of copyrighted works. It will be great, I will record all over the air broadcasts to include; television, radio, ect. I will then allow anyone to submit work to me and I’ll check it for copyright violations. Since this will require extensively reviewing my collection/database to ensure no copyright infringement has taken place when compared to my own works, I will leave all inspected works in my database for future inspection of new materials.

    The interesting thing is, with turnitin is this, if the person submitting a paper that was plagiarized from existing copyrighted material. The submitter did not have the legal right to submit that material, nor does turnitin have the right to maintain it in their database. Isn’t that the same as keeping stolen property?

    I think people need to realize, with copyrights laws – YOU CAN’T HAVE IT BOTH WAYS!

    So if TURNITIN does not remove the marketability of a product by have a free copy of it, then why should I not be able to copy all the music I want? Music influences people, correct, music is a learning, molding, shaping, developing tool correct. It may be entertaining but learning often is! Learning the beats, the style, the theme, the messages, meaning, and intents of the art work -(the music.) Seems it should fit in fair use. Marketability – I’m broke I can’t afford music, I wouldn’t pay for. How does getting free music then lower the marketability of a product I’m not going to pay for nor will pay for… but should I have such music it would be a violation of copyright, even if I’m using it for my betterment, to ensure I don’t accidentally emulate the same copyrighted segments in my own music, or to just learn from it. You can bet people would be knocking on my door and taking me to court, for the mere possession of their works – but by demanding they have the right to control dissemination of that work. I’m glad they lost the case, but scared that we are going to have organizations for hire act as policing bodies/agents. I guess I have had way too much coffee and just rambling on and on, but…… I’m tried of people not allowing me access to knowledge and preventing my access to knowledge under the banner of copyright infringement, then on the same token not afford me the same right to restrict what, where, or whom, I choose to privilege my privileged copyrighted knowledge to.

    Ummm, here is a counter argument for lowering the marketability of the high schoolers papers. If there is a market to ensure that people are not infringing copyright laws by way of plagerism – and there is just such a market just check TURNITIN’s profits for doing just that, I think by allowing turnitin to utilize the created copyrighted works for free does just that lower their marketability. Wouldn’t it be nice if there was a company that said…. HEY WHEN YOU WRITE A PAPER, regardless the topic we will pay you 10 bucks, there would be a market really quickly wouldn’t there! Who knows you have to pay royalties every time you use knowledge -music/technology ect that is protected. Why should this be any different. How many college students would not love to be paid for each paper they allow to be used in such a manner. I know I would allow use of my last paper on the civil war for just such a cause, 10 bucks is better than nothing! Heck, I bet I could pay some of my book expenses for the semester.

    Think in 2003 they posted 10million in profits and 160million in 2007, I think there is a market for databasing and cross checking of copyrighted papers don’t you?. I think rather than stealing the papers they use for profit, they should at least pay something… again how many high school students would be happy to sell restricted use of their paper on the civil war for 10 bucks! at 10 bucks a paper for limited use license on 8 million papers that is only 80million dollars. I think paying for the products they use in their service is not unreasonable! I’m sure if the were making money doing this for the music industry somebody would be getting paid!

    Sorry for my random babbling, but would someone please make sense of what I’m trying to say!

  9. Bob: I really don't have much to add. I agree that the logic of the ruling is disturbing but that it could have some unforeseen applications. I disagree heavily with a lot of what was in the ruling but have to hope that, overall, this ruling is for the better.

    It's going to be interesting to look back on this in ten years and see how it affected copyright on the whole and what kinds of new uses it barred/allowed.

    Thank you very much for your insight.

  10. Bob: I really don't have much to add. I agree that the logic of the ruling is disturbing but that it could have some unforeseen applications. I disagree heavily with a lot of what was in the ruling but have to hope that, overall, this ruling is for the better.It's going to be interesting to look back on this in ten years and see how it affected copyright on the whole and what kinds of new uses it barred/allowed.Thank you very much for your insight.

  11. Bob: I really don't have much to add. I agree that the logic of the ruling is disturbing but that it could have some unforeseen applications. I disagree heavily with a lot of what was in the ruling but have to hope that, overall, this ruling is for the better.It's going to be interesting to look back on this in ten years and see how it affected copyright on the whole and what kinds of new uses it barred/allowed.Thank you very much for your insight.

  12. Darren says:

    I’ll say it: I think it’s a stretch to rationalize music piracy based on the fact that a company stores a copy of your homework (submitted by the teacher you submitted your work to) in their database. Bob said:

    “I’m tried of people not allowing me access to knowledge and preventing my access to knowledge under the banner of copyright infringement, then on the same token not afford me the same right to restrict what, where, or whom, I choose to privilege my privileged copyrighted knowledge to.”

    1.) To put it in full context, copyright doesn’t restrict your access to “knowledge,” it restricts your access to somebody else’s intellectual property. You’re free to learn whatever you want, but your pursuit of that knowledge does not give you the right to trample somebody else’s property.

    As a quick example: You’re free to study physics all you want, but your desire to learn does not give you a right to illegally download copyrighted physics books.

    2.) When you agree to join a class, you voluntarily grant your teacher access to your homework (i.e. your “copyrighted knowledge”). How your homework is to be used is a matter between you and your teacher. If that teacher requires the submittal of your homework to a plagarism service, then your choice is to agree or leave the class.

    3.) Are you really that worked up about the fact that your homework is in Turnitin’s database? How does it affect your life or your ability to use your homework however you choose? It doesn’t, and I bet that’s why the judges said that there was no loss in the value or marketability of your homework.

  13. Darren says:

    I’ll say it: I think it’s a stretch to rationalize music piracy based on the fact that a company stores a copy of your homework (submitted by the teacher you submitted your work to) in their database. Bob said:

    “IÂ’m tried of people not allowing me access to knowledge and preventing my access to knowledge under the banner of copyright infringement, then on the same token not afford me the same right to restrict what, where, or whom, I choose to privilege my privileged copyrighted knowledge to.”

    1.) To put it in full context, copyright doesn’t restrict your access to “knowledge,” it restricts your access to somebody else’s intellectual property. You’re free to learn whatever you want, but your pursuit of that knowledge does not give you the right to trample somebody else’s property.

    As a quick example: You’re free to study physics all you want, but your desire to learn does not give you a right to illegally download copyrighted physics books.

    2.) When you agree to join a class, you voluntarily grant your teacher access to your homework (i.e. your “copyrighted knowledge”). How your homework is to be used is a matter between you and your teacher. If that teacher requires the submittal of your homework to a plagarism service, then your choice is to agree or leave the class.

    3.) Are you really that worked up about the fact that your homework is in Turnitin’s database? How does it affect your life or your ability to use your homework however you choose? It doesn’t, and I bet that’s why the judges said that there was no loss in the value or marketability of your homework.

  14. Darren: I agree with you on those points. I didn't quite "get" that when I first read Bob's reply but I can see where you are coming from. Perhaps I read through it too quickly.

    You are definitely right though about the difference between knowledge and copyrighted works. Copyrighted works protects creativity, not facts or information. There is a big difference well worth nothing.

    Number two is a bit more of a stretch though because the "choice" to leave the class, especially for those under the age of sixteen, is very dubious. How can I leave a class when the state requires that I be there and private schools are not an option. It's a difficult problem.

    Finally, I can think of some ways where the market value of the work would be damaged by having it in the database but most of them are unsavory applications I have no desire to promote. I'm not saying that the market damage meets the required levels, just that one can not say there is none.

    I do agree though that it is a stretch. I can see why the students are upset, but I also feel it has been blown a bit of proportion. My biggest worry though is that copyright is being used to deal with privacy and other issues and that could lead to very bad copyright rulings.

  15. Darren: I agree with you on those points. I didn't quite "get" that when I first read Bob's reply but I can see where you are coming from. Perhaps I read through it too quickly.You are definitely right though about the difference between knowledge and copyrighted works. Copyrighted works protects creativity, not facts or information. There is a big difference well worth nothing.Number two is a bit more of a stretch though because the "choice" to leave the class, especially for those under the age of sixteen, is very dubious. How can I leave a class when the state requires that I be there and private schools are not an option. It's a difficult problem.Finally, I can think of some ways where the market value of the work would be damaged by having it in the database but most of them are unsavory applications I have no desire to promote. I'm not saying that the market damage meets the required levels, just that one can not say there is none.I do agree though that it is a stretch. I can see why the students are upset, but I also feel it has been blown a bit of proportion. My biggest worry though is that copyright is being used to deal with privacy and other issues and that could lead to very bad copyright rulings.

  16. Darren: I agree with you on those points. I didn't quite "get" that when I first read Bob's reply but I can see where you are coming from. Perhaps I read through it too quickly.You are definitely right though about the difference between knowledge and copyrighted works. Copyrighted works protects creativity, not facts or information. There is a big difference well worth nothing.Number two is a bit more of a stretch though because the "choice" to leave the class, especially for those under the age of sixteen, is very dubious. How can I leave a class when the state requires that I be there and private schools are not an option. It's a difficult problem.Finally, I can think of some ways where the market value of the work would be damaged by having it in the database but most of them are unsavory applications I have no desire to promote. I'm not saying that the market damage meets the required levels, just that one can not say there is none.I do agree though that it is a stretch. I can see why the students are upset, but I also feel it has been blown a bit of proportion. My biggest worry though is that copyright is being used to deal with privacy and other issues and that could lead to very bad copyright rulings.

  17. bob says:

    Jonathan and Darren: I do realize that the difference between knowledge and copyrighted works, and that copyrighted works protects creativity, not facts or information. Facts and knowledge can't be copyrighted but unique creativity representation of the facts are. Aside from the Open Source arena, how many books full of knowledge are not use restricted effectively due to their copyright.

    Yes I can learn all the physics I want, but getting the information from sources which are without copyrighted may be rather difficult. This is why I say knowledge is restricted by copyright laws. Not directly but indirectly.

    I guess copyrights just frustrate me, I mean what is a copyrighted physics book accept for a collection of uniquely explained facts, and examples.

    When I joined a class I made no agreements for further transmittal of my works. Turning a paper in for grading was to allow to Prof. a chance to check for facts, and writing ability, not to claim transmittal/distribution rights of my works.

    If Turnitin makes a profit by maintaining a database of uniquely written papers to cross reference submitted papers for similarities, would that not make the unique papers of file valuable? Realize organizations pay a premium to turnitin for the sole purpose of checking plagiarisms. If someone copied my paper which was not submitted to turnitin, but his was, he would not be sited for plagiarism, and the validity of turnitin is decreased, should turnitin have a copy of my paper their validity would increase, would having my original paper be of value to turnitin at that time. The market value is destroyed when they were able to use unique works without payment or prior agreement, which was the case for me anyways.

    Anyways, I think if the world is getting so crazy they want to copyright DNA (which is the case with GMO plants) then at least allow the government to maintain the database, I know the WTO treaties and Global IP rights treaties would be in arms over requiring registration of materials for copyright, as we do with patents, but I think this would solve the problem. This way the laws can be enforced, and anyone can submit works to be cross referenced and checked for plagiarism.

    You know all this talk about globalism these days, and how it will allow developing nations to finally develop is trumped by their acceptance of global copyright laws. Where the country was struggling when they simply freely copied existing copyrighted, and patented works from the developed world, how might they do when they are required to pay royalties on the IP rights they use simply copy for free? The more global the world becomes the more focus in IP rights.

    How can countries who struggle to get ahead in a world where technology could be freely emulated then compound their struggle with licensing fees… SCARRY WORLD…

    But if you want to know the truth, I think based on my principles that turnitin has every right to maintain databases on prior original works, as I firmly believe that artificial scarcity can not and should not be given property rights – which would suggest that it can be taken away from you. I just get upset with the current culture and desire to monopolize knowledge. (patents, copyrights, ect.)

    Again sorry for getting ideological and not addressing the actualities of the turnitin legal argument. But I have never felt so inclined to post on an online board before. With that said sorry if I

    People who hold copyright for published works need to realize this, the true value of their works are worth no more than the paper they are printed on. Value comes from producing labor, I make a wooden wheel, and I sell the finished product to someone who wants a wooden wheel. How valuable was knowing how to build a wooden wheel for the person who purchased the wheel. It was not worth anything because he didn't make it. Remember knowledge is power, labor is value. I know it's scary ground thinking of a world without IP rights, but the last time mankind had a broad restriction of knowledge we lived in castles… The only difference from then and our not so distant future is we may have the knowledge but we can't use it – or we'll get shot if the face by the IP police.

    sorry for straying from the topic, but I think considering every decision we make doesn't end with that decision it pushes us in a direction, and do we want what is waiting for us at the end of this direction.

    It should be pointed out never before in history have authors, artists, or inventors been rewarded for their ideas alone, as they have been in this modern age.

    So, with a little luck -aside from my greed and desire to withhold my unique understandings of the world – if you can't physically take something back from somebody, you shouldn't be able to oppress it either. You can hold on to your pencil and never let me use your pencil, but you can not take away my knowledge of that pencil, or how to use that pencil, or the theory behind making that pencil.

    Artificial scaricty is feudalistic.

    Again sorry for getting off topic and not addressing the legal argument for turnitins ruling. I have never posted to an online board before so I hope this post isn't viewed with too much frustration

    -bob

  18. bob says:

    Jonathan and Darren: I do realize that the difference between knowledge and copyrighted works, and that copyrighted works protects creativity, not facts or information. Facts and knowledge can't be copyrighted but unique creativity representation of the facts are. Aside from the Open Source arena, how many books full of knowledge are not use restricted effectively due to their copyright.Yes I can learn all the physics I want, but getting the information from sources which are without copyrighted may be rather difficult. This is why I say knowledge is restricted by copyright laws. Not directly but indirectly.I guess copyrights just frustrate me, I mean what is a copyrighted physics book accept for a collection of uniquely explained facts, and examples.When I joined a class I made no agreements for further transmittal of my works. Turning a paper in for grading was to allow to Prof. a chance to check for facts, and writing ability, not to claim transmittal/distribution rights of my works.If Turnitin makes a profit by maintaining a database of uniquely written papers to cross reference submitted papers for similarities, would that not make the unique papers of file valuable? Realize organizations pay a premium to turnitin for the sole purpose of checking plagiarisms. If someone copied my paper which was not submitted to turnitin, but his was, he would not be sited for plagiarism, and the validity of turnitin is decreased, should turnitin have a copy of my paper their validity would increase, would having my original paper be of value to turnitin at that time. The market value is destroyed when they were able to use unique works without payment or prior agreement, which was the case for me anyways.Anyways, I think if the world is getting so crazy they want to copyright DNA (which is the case with GMO plants) then at least allow the government to maintain the database, I know the WTO treaties and Global IP rights treaties would be in arms over requiring registration of materials for copyright, as we do with patents, but I think this would solve the problem. This way the laws can be enforced, and anyone can submit works to be cross referenced and checked for plagiarism. You know all this talk about globalism these days, and how it will allow developing nations to finally develop is trumped by their acceptance of global copyright laws. Where the country was struggling when they simply freely copied existing copyrighted, and patented works from the developed world, how might they do when they are required to pay royalties on the IP rights they use simply copy for free? The more global the world becomes the more focus in IP rights. How can countries who struggle to get ahead in a world where technology could be freely emulated then compound their struggle with licensing fees… SCARRY WORLD…But if you want to know the truth, I think based on my principles that turnitin has every right to maintain databases on prior original works, as I firmly believe that artificial scarcity can not and should not be given property rights – which would suggest that it can be taken away from you. I just get upset with the current culture and desire to monopolize knowledge. (patents, copyrights, ect.)Again sorry for getting ideological and not addressing the actualities of the turnitin legal argument. But I have never felt so inclined to post on an online board before. With that said sorry if I People who hold copyright for published works need to realize this, the true value of their works are worth no more than the paper they are printed on. Value comes from producing labor, I make a wooden wheel, and I sell the finished product to someone who wants a wooden wheel. How valuable was knowing how to build a wooden wheel for the person who purchased the wheel. It was not worth anything because he didn't make it. Remember knowledge is power, labor is value. I know it's scary ground thinking of a world without IP rights, but the last time mankind had a broad restriction of knowledge we lived in castles… The only difference from then and our not so distant future is we may have the knowledge but we can't use it – or we'll get shot if the face by the IP police.sorry for straying from the topic, but I think considering every decision we make doesn't end with that decision it pushes us in a direction, and do we want what is waiting for us at the end of this direction. It should be pointed out never before in history have authors, artists, or inventors been rewarded for their ideas alone, as they have been in this modern age.So, with a little luck -aside from my greed and desire to withhold my unique understandings of the world – if you can't physically take something back from somebody, you shouldn't be able to oppress it either. You can hold on to your pencil and never let me use your pencil, but you can not take away my knowledge of that pencil, or how to use that pencil, or the theory behind making that pencil.Artificial scaricty is feudalistic.Again sorry for getting off topic and not addressing the legal argument for turnitins ruling. I have never posted to an online board before so I hope this post isn't viewed with too much frustration -bob

  19. bob says:

    Jonathan and Darren: I do realize that the difference between knowledge and copyrighted works, and that copyrighted works protects creativity, not facts or information. Facts and knowledge can't be copyrighted but unique creativity representation of the facts are. Aside from the Open Source arena, how many books full of knowledge are not use restricted effectively due to their copyright.Yes I can learn all the physics I want, but getting the information from sources which are without copyrighted may be rather difficult. This is why I say knowledge is restricted by copyright laws. Not directly but indirectly.I guess copyrights just frustrate me, I mean what is a copyrighted physics book accept for a collection of uniquely explained facts, and examples.When I joined a class I made no agreements for further transmittal of my works. Turning a paper in for grading was to allow to Prof. a chance to check for facts, and writing ability, not to claim transmittal/distribution rights of my works.If Turnitin makes a profit by maintaining a database of uniquely written papers to cross reference submitted papers for similarities, would that not make the unique papers of file valuable? Realize organizations pay a premium to turnitin for the sole purpose of checking plagiarisms. If someone copied my paper which was not submitted to turnitin, but his was, he would not be sited for plagiarism, and the validity of turnitin is decreased, should turnitin have a copy of my paper their validity would increase, would having my original paper be of value to turnitin at that time. The market value is destroyed when they were able to use unique works without payment or prior agreement, which was the case for me anyways.Anyways, I think if the world is getting so crazy they want to copyright DNA (which is the case with GMO plants) then at least allow the government to maintain the database, I know the WTO treaties and Global IP rights treaties would be in arms over requiring registration of materials for copyright, as we do with patents, but I think this would solve the problem. This way the laws can be enforced, and anyone can submit works to be cross referenced and checked for plagiarism. You know all this talk about globalism these days, and how it will allow developing nations to finally develop is trumped by their acceptance of global copyright laws. Where the country was struggling when they simply freely copied existing copyrighted, and patented works from the developed world, how might they do when they are required to pay royalties on the IP rights they use simply copy for free? The more global the world becomes the more focus in IP rights. How can countries who struggle to get ahead in a world where technology could be freely emulated then compound their struggle with licensing fees… SCARRY WORLD…But if you want to know the truth, I think based on my principles that turnitin has every right to maintain databases on prior original works, as I firmly believe that artificial scarcity can not and should not be given property rights – which would suggest that it can be taken away from you. I just get upset with the current culture and desire to monopolize knowledge. (patents, copyrights, ect.)Again sorry for getting ideological and not addressing the actualities of the turnitin legal argument. But I have never felt so inclined to post on an online board before. With that said sorry if I

    People who hold copyright for published works need to realize this, the true value of their works are worth no more than the paper they are printed on. Value comes from producing labor, I make a wooden wheel, and I sell the finished product to someone who wants a wooden wheel. How valuable was knowing how to build a wooden wheel for the person who purchased the wheel. It was not worth anything because he didn't make it. Remember knowledge is power, labor is value. I know it's scary ground thinking of a world without IP rights, but the last time mankind had a broad restriction of knowledge we lived in castles… The only difference from then and our not so distant future is we may have the knowledge but we can't use it – or we'll get shot if the face by the IP police.sorry for straying from the topic, but I think considering every decision we make doesn't end with that decision it pushes us in a direction, and do we want what is waiting for us at the end of this direction. It should be pointed out never before in history have authors, artists, or inventors been rewarded for their ideas alone, as they have been in this modern age.So, with a little luck -aside from my greed and desire to withhold my unique understandings of the world – if you can't physically take something back from somebody, you shouldn't be able to oppress it either. You can hold on to your pencil and never let me use your pencil, but you can not take away my knowledge of that pencil, or how to use that pencil, or the theory behind making that pencil.Artificial scaricty is feudalistic.Again sorry for getting off topic and not addressing the legal argument for turnitins ruling. I have never posted to an online board before so I hope this post isn't viewed with too much frustration -bob

  20. Darren says:

    Hi Bob. I didn't mean to jump on your previous post, and I don't here, either. This is just a friendly discussion about an important issue. :) But that said, I still disagree with you on a few points. You said:

    "I guess copyrights just frustrate me, I mean what is a copyrighted physics book accept for a collection of uniquely explained facts, and examples."

    A physics book is not just a collection of knowledge; it's a collection of knowledge *assembled through the work of other people." And it's that work that copyright protects. If you steal the digital copy of the physics book you're taking their work without their consent, and that's what makes it wrong.

    I probably won't be able to convince you otherwise in this short of time, but I'd like to throw out an idea that really got me to totally change my attitude towards intellectual property. And that is, the foundation of intellectual property is the same as the foundation for material property: The right to your life. Every person needs stuff to survive (food, water, clothing, etc.), but we also need to be free to *make* stuff and to *own* stuff. We need to be free to act according to own judgment and reap the rewards.

    I think that most people understand this when it comes to material property, at least to a certain degree. For example, most people understand that their right to own a car doesn't mean that somebody owes them a car or that they get to steal their neighbor's car, but instead know that it means they have a right to *earn* a car. If you want a car (or any other piece of property) you have earn the money to buy it, and once you do the car is yours. It's yours by right of *your work.* You did it, so you get it.

    There are differences between material and intellectual property, but they're both still built on this same foundation. If you write a great song, write a great piece of software, or create something that may or may not be material, it's still yours by right that you created it. Just like any material piece of property you own.

    There's a lot more to be said on this topic, but I just want to get that basic idea across. In all of the cases we've discussed (including the copyrighted GMO plant DNA), copyright is protecting the work of individuals. We can disagree on whether copyright should be used like this, but the issue is whether people's work will be protected. When you drop "work" out of the equation and say that copyright "monopolizes knowledge," you're dropping a huge amount of context.

    And just one more thing: You mentioned the fact that never before in human history have authors, artists, or inventors been rewarded for their ideas alone. Well, I'm glad I live today and not in the time of castles! Just think about it. How many centuries went by where people had to work their lives away, with hardly any defense against disease, drought, or famine? Luckily for all of us, some people started to realize that that's not the way to live. Acknowledging the right to live — including the right to own property — was what let us pull ourselves out of that horrible existence and into the lives we get to live today. A few hundred years ago I'd probably be living on what I could kill or dig out of the ground, but today I survive by typing my ideas onto a computer keyboard. I do more than survive, though… I live! I have a fair amount of free time, I have a comfortable house, and car that I can use to go anywhere I want, the care of doctors who will help me live a long time, and the countless benefits of the work of thousands of inventors whose ideas have all been combined into making this great thing I call my life.

    So if I were you, I wouldn't use the Middle Ages as an example of what we should do today. :)

  21. Darren says:

    Hi Bob. I didn't mean to jump on your previous post, and I don't here, either. This is just a friendly discussion about an important issue. :) But that said, I still disagree with you on a few points. You said:"I guess copyrights just frustrate me, I mean what is a copyrighted physics book accept for a collection of uniquely explained facts, and examples."A physics book is not just a collection of knowledge; it's a collection of knowledge *assembled through the work of other people." And it's that work that copyright protects. If you steal the digital copy of the physics book you're taking their work without their consent, and that's what makes it wrong.I probably won't be able to convince you otherwise in this short of time, but I'd like to throw out an idea that really got me to totally change my attitude towards intellectual property. And that is, the foundation of intellectual property is the same as the foundation for material property: The right to your life. Every person needs stuff to survive (food, water, clothing, etc.), but we also need to be free to *make* stuff and to *own* stuff. We need to be free to act according to own judgment and reap the rewards. I think that most people understand this when it comes to material property, at least to a certain degree. For example, most people understand that their right to own a car doesn't mean that somebody owes them a car or that they get to steal their neighbor's car, but instead know that it means they have a right to *earn* a car. If you want a car (or any other piece of property) you have earn the money to buy it, and once you do the car is yours. It's yours by right of *your work.* You did it, so you get it. There are differences between material and intellectual property, but they're both still built on this same foundation. If you write a great song, write a great piece of software, or create something that may or may not be material, it's still yours by right that you created it. Just like any material piece of property you own. There's a lot more to be said on this topic, but I just want to get that basic idea across. In all of the cases we've discussed (including the copyrighted GMO plant DNA), copyright is protecting the work of individuals. We can disagree on whether copyright should be used like this, but the issue is whether people's work will be protected. When you drop "work" out of the equation and say that copyright "monopolizes knowledge," you're dropping a huge amount of context. And just one more thing: You mentioned the fact that never before in human history have authors, artists, or inventors been rewarded for their ideas alone. Well, I'm glad I live today and not in the time of castles! Just think about it. How many centuries went by where people had to work their lives away, with hardly any defense against disease, drought, or famine? Luckily for all of us, some people started to realize that that's not the way to live. Acknowledging the right to live — including the right to own property — was what let us pull ourselves out of that horrible existence and into the lives we get to live today. A few hundred years ago I'd probably be living on what I could kill or dig out of the ground, but today I survive by typing my ideas onto a computer keyboard. I do more than survive, though… I live! I have a fair amount of free time, I have a comfortable house, and car that I can use to go anywhere I want, the care of doctors who will help me live a long time, and the countless benefits of the work of thousands of inventors whose ideas have all been combined into making this great thing I call my life. So if I were you, I wouldn't use the Middle Ages as an example of what we should do today. :)

  22. Darren says:

    Hi Bob. I didn't mean to jump on your previous post, and I don't here, either. This is just a friendly discussion about an important issue. :) But that said, I still disagree with you on a few points. You said:"I guess copyrights just frustrate me, I mean what is a copyrighted physics book accept for a collection of uniquely explained facts, and examples."A physics book is not just a collection of knowledge; it's a collection of knowledge *assembled through the work of other people." And it's that work that copyright protects. If you steal the digital copy of the physics book you're taking their work without their consent, and that's what makes it wrong.I probably won't be able to convince you otherwise in this short of time, but I'd like to throw out an idea that really got me to totally change my attitude towards intellectual property. And that is, the foundation of intellectual property is the same as the foundation for material property: The right to your life. Every person needs stuff to survive (food, water, clothing, etc.), but we also need to be free to *make* stuff and to *own* stuff. We need to be free to act according to own judgment and reap the rewards. I think that most people understand this when it comes to material property, at least to a certain degree. For example, most people understand that their right to own a car doesn't mean that somebody owes them a car or that they get to steal their neighbor's car, but instead know that it means they have a right to *earn* a car. If you want a car (or any other piece of property) you have earn the money to buy it, and once you do the car is yours. It's yours by right of *your work.* You did it, so you get it. There are differences between material and intellectual property, but they're both still built on this same foundation. If you write a great song, write a great piece of software, or create something that may or may not be material, it's still yours by right that you created it. Just like any material piece of property you own. There's a lot more to be said on this topic, but I just want to get that basic idea across. In all of the cases we've discussed (including the copyrighted GMO plant DNA), copyright is protecting the work of individuals. We can disagree on whether copyright should be used like this, but the issue is whether people's work will be protected. When you drop "work" out of the equation and say that copyright "monopolizes knowledge," you're dropping a huge amount of context. And just one more thing: You mentioned the fact that never before in human history have authors, artists, or inventors been rewarded for their ideas alone. Well, I'm glad I live today and not in the time of castles! Just think about it. How many centuries went by where people had to work their lives away, with hardly any defense against disease, drought, or famine? Luckily for all of us, some people started to realize that that's not the way to live. Acknowledging the right to live — including the right to own property — was what let us pull ourselves out of that horrible existence and into the lives we get to live today. A few hundred years ago I'd probably be living on what I could kill or dig out of the ground, but today I survive by typing my ideas onto a computer keyboard. I do more than survive, though… I live! I have a fair amount of free time, I have a comfortable house, and car that I can use to go anywhere I want, the care of doctors who will help me live a long time, and the countless benefits of the work of thousands of inventors whose ideas have all been combined into making this great thing I call my life. So if I were you, I wouldn't use the Middle Ages as an example of what we should do today. :)

  23. Bernie says:

    Some thoughts on this from an IT professional's viewpoint-

    Certainly plagiarism is bad and the TurnItIn services provides a useful service that minimizes it. The problems I see with this ruling is that it depends on situation-specific circumstances, which may not be interpreted quite so narrowly in other courts.

    Examples include:

    Enforceability of click-wrap licenses- this has always been an issue within computing and will remain so. The mere presence of options does not make them viable to the end user. Anyone care to try producing a PDF document without agreeing to Acrobat's licensing? If what you must have to meet someone's requirements is a PDF, you are pretty much stuck agreeing to all the options included in the license.

    Application of laws to those not able to commit to legal agreements (minors)- the argument that someone benefits from an illegal agreement is not logically sound, although it certainly works here to meet the needs of the parties involved. I think this is a case of justice versus law and the ruling is a just one. From a logical viewpoint, it is troublesome that people are breaking a law with the understanding that a higher good is being served. I would argue that the law needs to be clarified and rewritten to address the specific situation.

    Finally, the issue of copyright infringement- if a student chooses to exercise copyright over something, this case is essentially stating that under certain circumstances that copyright can be considered invalid. Again, a reasonable situation in some circumstances, but one that would best be clearly defined by the laws rather than depending on judges to issue rulings.

    What if the homework in question is related to a science fair and your child comes up with an inventive new way of say, solving a common pollution problem? The teacher's submission to TurnItIn may invalidate any legal protections to the invention. Not a common occurrence, certainly, but if you interested in protecting ALL the children why not write a law that clarifies the situation and clear up any ambiguity?

    My $0.02, deposited.

  24. Bernie says:

    Some thoughts on this from an IT professional’s viewpoint-

    Certainly plagiarism is bad and the TurnItIn services provides a useful service that minimizes it. The problems I see with this ruling is that it depends on situation-specific circumstances, which may not be interpreted quite so narrowly in other courts.

    Examples include:

    Enforceability of click-wrap licenses- this has always been an issue within computing and will remain so. The mere presence of options does not make them viable to the end user. Anyone care to try producing a PDF document without agreeing to Acrobat’s licensing? If what you must have to meet someone’s requirements is a PDF, you are pretty much stuck agreeing to all the options included in the license.

    Application of laws to those not able to commit to legal agreements (minors)- the argument that someone benefits from an illegal agreement is not logically sound, although it certainly works here to meet the needs of the parties involved. I think this is a case of justice versus law and the ruling is a just one. From a logical viewpoint, it is troublesome that people are breaking a law with the understanding that a higher good is being served. I would argue that the law needs to be clarified and rewritten to address the specific situation.

    Finally, the issue of copyright infringement- if a student chooses to exercise copyright over something, this case is essentially stating that under certain circumstances that copyright can be considered invalid. Again, a reasonable situation in some circumstances, but one that would best be clearly defined by the laws rather than depending on judges to issue rulings.

    What if the homework in question is related to a science fair and your child comes up with an inventive new way of say, solving a common pollution problem? The teacher’s submission to TurnItIn may invalidate any legal protections to the invention. Not a common occurrence, certainly, but if you interested in protecting ALL the children why not write a law that clarifies the situation and clear up any ambiguity?

    My $0.02, deposited.

  25. Bernie,

    For the most part, I agree with what you had to say. One minor point before jumping in to the meat though is that PDF is now an ISO standard so you can create PDFs from any number of applications, including OpenOffice, without agreeing to anything from Adobe. The point is there, but PDF might not have been the best example.

    I agree with you about the contract portion of the ruling. It seems to me that the judge was kind of working backwards on this one, having formed an opinion about what was right and then making the law match. It seems that the logic was a bit twisted in places in a bid to get the ruling that felt right to the judge.

    With the copyright portion of the ruling, I have to say that I am a bit confused, I don't see how TII could invalidate any legal protections for a work put into it. Even though it was ruled a fair use, the fact is the student still has copyright in the work and all TII stores is a fingerprint, which after talking with the CEO of iParadigms at a conference, I can say is indeed different than the article itself.

    Nothing TII does should negatively impact the student's rights to their work elsewhere, the question is whether TII is an infringement unto itself.

    I'd be interested in your thoughts and clarification on that issue, admittedly, I haven't looked at the ruling for quite some time.

  26. Bernie,

    For the most part, I agree with what you had to say. One minor point before jumping in to the meat though is that PDF is now an ISO standard so you can create PDFs from any number of applications, including OpenOffice, without agreeing to anything from Adobe. The point is there, but PDF might not have been the best example.

    I agree with you about the contract portion of the ruling. It seems to me that the judge was kind of working backwards on this one, having formed an opinion about what was right and then making the law match. It seems that the logic was a bit twisted in places in a bid to get the ruling that felt right to the judge.

    With the copyright portion of the ruling, I have to say that I am a bit confused, I don’t see how TII could invalidate any legal protections for a work put into it. Even though it was ruled a fair use, the fact is the student still has copyright in the work and all TII stores is a fingerprint, which after talking with the CEO of iParadigms at a conference, I can say is indeed different than the article itself.

    Nothing TII does should negatively impact the student’s rights to their work elsewhere, the question is whether TII is an infringement unto itself.

    I’d be interested in your thoughts and clarification on that issue, admittedly, I haven’t looked at the ruling for quite some time.

  27. bailout benny says:

    I don't agree with the whole concept of "intellectual property." I think all IP law; patents, trademark, copyright, etc.; are fallacious concepts that impede creativity more than enhance it. Honestly ask yourself, does copyright inspire creativity? The answer is no, the creativity exists prior to the protection of the resultant works. People wish to profit from their creativity. This is where IP law comes in. The only problem is that people profit from their creativity in a relatively short time but IP rights can span decades. The need for copyright to exist for 75+ years or patents to exist for 10+ years is absurd. Holding rights for so long stifles innovation because it grants the rights holder a monopoly on use, including derivative works. While I don't think IP law will ever disappear in the United States, I do think that the current time frames need to be drastically cut back to spur innovation again. Also, as far as patents go, I think derivative works should be free from legal constraint if they are marked improvements over the original concept.As far as these kids go I think the choices the kids had need to be laid out on the table. Saying the kids could be home schooled or receive private schooling is unacceptable. The parents might not have the financial means to stop working and homeschool a child, they have bills like everyone else. They also might not be able to afford private school, especially since they can't stop paying taxes for public school and divert those funds to private school. A few other issues come to mind. First, I'm sure the legal guardians were not informed of the necessity for the minors to enter into a legally binding contract if they are highschoolers. Secondly, saying the students' work didn't suffer any loss of market value is misleading and doesn't take into account possible problems down the road. What if the site is hacked? The website has a disclaimer that grants immunity from all liability but the students have no such protections and have no legal recourse if their work is exposed to parties not agreed upon. Since a student in a highschool class cannot just change instructors, and students in college might not be able to after certain deadlines expire, the students are forced into an agreement that is most certainly favorable to iParadigms. The student gains the benefit of being able to pass the class, but loses the benefit of choosing who gets to see their work. Trying to withdraw from the class to avoid the contract may not be possible in the case of minors or may be financially punitive to a college student who has to take classes in a certain order to be able to finish in a timeframe requisite for scholarships/grants or for their budget.All in all I think this judgement was not right. On the face of it the contract is null and void since the students were minors and any contract entered into by a minor does not have any legal standing. Secondly the company is profiting off of agreements that may have been made because of circumstances beyond the control of the contractee. Contracts that are the result of coercion or fraud usually have no legal standing either.

  28. ssharon says:

    I’m going to disagree with the recent decision in this case. Aside from the fact that I think the fair use factors should have been decided differently there are major contracts issues as well as privacy issues that the court and iparadigm failed to properly address. I’ll summarize my argument based on an essay I wrote covering the lower court’s decision because it is basically the same as the more recent decision.Let’s start with the first factor, the purpose and character of the use which typically leads to a discussion as to whether the use was “transformative.” Turnitin’s use of student papers is hardly transformative. The papers are the same before and after Turnitin’s use. Compare this to two cases that also analyzed fair use. Campbell created a parody of a song which is inherently transformative and Google created thumbnails of Perfect 10 images. Turnitin on the other hand has created nothing.This same logic applies to the analysis explaining that fighting plagiarism provides a public benefit. Similar language was used in Campbell, but the court was clear to point out that the social benefit was in a new work being created. Again, Turnitin doesn’t create a new work. As for purpose and character of the use – Turnitin is a for profit commercial venture. This fact can be compared to Google which is also for profit, but one distinction sets these cases far apart. Google provides its search services for free whereas Turnitin charges schools thousands of dollars.Moving on to the nature of the copyrighted work we learn from Campbell that “some works are closer to the core of intended copyright protection that others.” Campbell actually found this factor to be of little use, but iParadigms found this factor to either favor neither party or to favor Turnitin. Perfect 10 on the other hand found that it favored the content creator. The reason for this is because iParadigms followed the Blum decision and looked to see whether “the incentive for creativity ha[d] been diminished.” In my opinion this makes sense and all evidence suggests that the incentive of the students has not been diminished because of Turnitin. This is the only factor that should have been decided in favor of Turnitin (keeping in mind of course that all four factors must be taken into consideration together).The third factor calls into question the amount and substantiality of the portions used. The court in iParadigm again finds that this factor either favors neither party or favors Turnitin. This is despite the fact the Turnitin relied on Perfect 10 where the judge clearly said the factor favored neither party. With such similar facts this discrepancy is worth noting.The fourth factor is where I disagree the most with iParadigm. Here we look at “the effect of the use upon the potential market for or value of the copyrighted work.” The court only discusses the potential market of black market essay sales and ignores the much more obvious potential market. Turnitin makes millions of dollars a year by marketing its vast collection of student papers. The “potential” market is staring us right in the face it is called a competitor to Turnitin. With Turnitin taking the student papers for free it completely obliterates the value of the papers to a competing anti-plagiarism service. On top of this Perfect 10 also mentions the right of first publication. Given that Turnitin can send student papers to professors across the country – without the student’s knowledge – this severely limits the ability of a student to honestly say that their paper has never been released to the public.Needless to say I am disappointed with the decision of the appeals court. I don’t deny the existence of plagiarism or the need to detect it, but Turnitin is not the way to do it.If you want to discuss the privacy issues that Turnitin violates (such as COPPA and FERPA) I would be happy to. I would also be happy to discuss the contracts issues that pertain to this case in other forum.

  29. I’m going to disagree with the recent decision in this case. Aside from the fact that I think the fair use factors should have been decided differently there are major contracts issues as well as privacy issues that the court and iparadigm failed to properly address. I’ll summarize my argument based on an essay I wrote covering the lower court’s decision because it is basically the same as the more recent decision.Let’s start with the first factor, the purpose and character of the use which typically leads to a discussion as to whether the use was “transformative.” Turnitin’s use of student papers is hardly transformative. The papers are the same before and after Turnitin’s use. Compare this to two cases that also analyzed fair use. Campbell created a parody of a song which is inherently transformative and Google created thumbnails of Perfect 10 images. Turnitin on the other hand has created nothing.This same logic applies to the analysis explaining that fighting plagiarism provides a public benefit. Similar language was used in Campbell, but the court was clear to point out that the social benefit was in a new work being created. Again, Turnitin doesn’t create a new work. As for purpose and character of the use – Turnitin is a for profit commercial venture. This fact can be compared to Google which is also for profit, but one distinction sets these cases far apart. Google provides its search services for free whereas Turnitin charges schools thousands of dollars.Moving on to the nature of the copyrighted work we learn from Campbell that “some works are closer to the core of intended copyright protection that others.” Campbell actually found this factor to be of little use, but iParadigms found this factor to either favor neither party or to favor Turnitin. Perfect 10 on the other hand found that it favored the content creator. The reason for this is because iParadigms followed the Blum decision and looked to see whether “the incentive for creativity ha[d] been diminished.” In my opinion this makes sense and all evidence suggests that the incentive of the students has not been diminished because of Turnitin. This is the only factor that should have been decided in favor of Turnitin (keeping in mind of course that all four factors must be taken into consideration together).The third factor calls into question the amount and substantiality of the portions used. The court in iParadigm again finds that this factor either favors neither party or favors Turnitin. This is despite the fact the Turnitin relied on Perfect 10 where the judge clearly said the factor favored neither party. With such similar facts this discrepancy is worth noting.The fourth factor is where I disagree the most with iParadigm. Here we look at “the effect of the use upon the potential market for or value of the copyrighted work.” The court only discusses the potential market of black market essay sales and ignores the much more obvious potential market. Turnitin makes millions of dollars a year by marketing its vast collection of student papers. The “potential” market is staring us right in the face it is called a competitor to Turnitin. With Turnitin taking the student papers for free it completely obliterates the value of the papers to a competing anti-plagiarism service. On top of this Perfect 10 also mentions the right of first publication. Given that Turnitin can send student papers to professors across the country – without the student’s knowledge – this severely limits the ability of a student to honestly say that their paper has never been released to the public.Needless to say I am disappointed with the decision of the appeals court. I don’t deny the existence of plagiarism or the need to detect it, but Turnitin is not the way to do it.If you want to discuss the privacy issues that Turnitin violates (such as COPPA and FERPA) I would be happy to. I would also be happy to discuss the contracts issues that pertain to this case in other forum.

  30. I Write Software says:

    "I don't agree with the whole concept of "intellectual property." I think all IP law; patents, trademark, copyright, etc.; are fallacious concepts that impede creativity more than enhance it. Honestly ask yourself, does copyright inspire creativity? The answer is no, the creativity exists prior to the protection of the resultant works. People wish to profit from their creativity. This is where IP law comes in. The only problem is that people profit from their creativity in a relatively short time but IP rights can span decades."Obviously "Bailout Benny" has never created anything of value in his entire life (material or intellectual) and probably survives by stealing what he needs.

  31. greenman says:

    I found this article after google turnitin lawsuit to see if turnitin is legal or what not. I feel that the only difference between you guys and essay companies is that you don't pay or credit the original author for their work. You both gain money from the use of submitted papers and access them in definitely. Yes i am an upset student because I know you will have my work for the rest of eternity, but I feel like I should benefit some how from contributing to your business model. That is "Archiving papers for further access and comparison on an automated level". At least pay me or request permission to store my paper. That is all.

    • Law Warrior says:

      These companies have millions of papers cataloged by grade. Those papers written that are A grades get sold per page to other people who suck at being a student not to mention if there is someone trying to get published and they can’t cut it, if they find an academic paper that suits their needs, a few changes can be made because they paid for it, it now becomes their property and say they get published then they make money off your work or someone else’s hard good A work!

      The majority of papers sold are being sold to lazy crappy students who probably shouldn’t be students! The company has sold papers, some as much as 50.00 per page being an A paper.

      Middle ground payment for C and D papers that their disclaimer states they do not guarantee the grade. The company makes their money off you, off the crap student who takes the chance getting caught and it can and does come back to the original author who can also be accused of plagiarism and face the same consequences as the student who bought and paid for their right to be kicked out and the company is laughing all the way to the bank…..

      If you or any other student does not want your work to go through this program and your school is telling you that you have NO choice, IF it is NOT in the school regulations the school, the individual instructors submitting without your permission is LIABLE!

      Liable means you can sue each individual instructor, the university and the individuals in the university who are either pushing the instructors to use this tool who are NOT required.

      Not only does this fall under liable, each person submitting your work to be graded and the instructor goes against your request, they are violating your Civil and Constitutional Rights. So many think the Internet is so great, maybe for some things, but like scientists, politicians, who NONE have stopping power, they all seem to have impulse control issues that affect everyone on a Global level when it comes to certain things.
      When is enough, enough? When does Capitalism begin doing harm to you or me?

      I Plagiarism and Turn It In companies dodged a litigious bullet because the litigants were minors, young people who legally have NO rights until they are 18 and are then considered a Citizen whether born in the US or not, no person is considered a legal citizen until 18.

      Had adults filed the suit against these companies there would have been a different outcome nor would some Judge been allowed to dismiss this case….

  32. Tatkins1943 says:

    Consider this… Turnitin is actually protecting the student's copyrighted works. It is keeping other individuals from using or copying it and turning it in as their own work. Was this brought out in the trial?

  33. MatthewKamar says:

    OK, let me break this down nice and easy for everybody. My school cannot, as a matter of law, require me to sign a contract to a third party. It is that simple. You see, contracts have terms. Nobody is required to agree to those terms. You can’t force anybody to sign anything as a prerequisite to passing a college class. That is called extortion. The plaintiffs in this case were morons, and they would have won if they had made the proper argument. Turn It In is an excuse for professors to be lazy. And what is the legal recourse if their “service” falsely accuses a student of plagiarism? Exactly no recourse is available to most students. This is a corporate charade. It makes me ill. Wake up, kids, they are all screwing you. And you are not getting an education, either. Go to the library and teach yourself, I promise you will learn more, pay less, and totally not get laid…

    • Law Warrior says:

      Hey Matthew; you are correct for some of what you are saying, but because the kids who began the litigation were minors, had they had their parents be et, el then there would have been a different outcome!

      I am a student and I refuse to use the Turn it In program because I did not ,will not sign nor agree to using this program allowing this company to get rich off what I write that I have not given anyone copyright approval to use.

      It now comes down to each school, university, and their individual regulations. Do they say a student is required to submit? Are the instructors/teachers required to submit and use these programs?

      So far I haven’t found any institution that requires this action by instructors/teachers to absolutely use any of the plagiarism companies, who are all born out of (1) original company branching sister companies from one making millions off students papers.

  34. Law Warrior says:

    even though it was minors to sue, this is too all other students!!

    If your school, institution uses Turn it In program you are NOT agreeing personally to use. Even though the Company cannot be sued for copyright infringement under the CLICK WRAP LICENSE.

    READ you schools REGS!!!! IF there is NO policies about instructor/teachers being REGUIRED to use either IPLAGARISM or TURN IT IN programs which is just the instructor/teacher being LAZY, then “they” each individual instructor/teacher and institution becomes LIABLE….. Maybe Iplagiarism or Turn it In companies can’t be held liable, but each individual institution and their teachers/instructors can be! If you are NOT agreeing for either to SUBMITT your work then you are NOT agreeing to any WRAP agreement. All companies associated to the Mother company Iplagiarism, Turn it In a sister company and others, they ALL save your work, your ideas, and sell them. Some being sold at 20.00 plus per page and that is a profit to the companies. The WRAP clause does not cover that either and those kids lost due to not having decent legal representation! If they had a better attorney there would have been a different outcome……Now it is up to each individual student to not only file a grievance, but a small claims against each time, each instructor/teacher for using these programs.

    They should just read the papers instead of being lazy, the expectations being a student, you are and show respect to your instructor/teacher, but they show NO respect for the student by not taking the time to READ their work they worked hard for that teacher/ instructor…….

  35. Law Warrior says:

    I have written MANY papers on plagiarism, one was about Martin Luther King Jr. who plagiarized so many while writing his Dissertation many faculty protest him getting his doctorate degree.

    MLK Jr. was allowed due to who he was not based on his ability to write…..Where and what does this say when a person such as MLK Jr. cheated so much, but because his father was famous he was allowed to graduate in name because his grades and conduct as a student did not live up to university standards….

    He plagiarized so many in his dissertation the article could not list all of them…. Now I wonder who actually wrote the words he used for his famous speeches that so many look at being so profound. I only see a cheater when I work my tail off to keep straight A’s for school I pay my own tuition not my parents that I wasn’t as fortunate to have……

  36. Keith says:

    Big business and cash money wins again. A bloated corporate beast like turnitin vs a broke college student.

    Great, now more universities can keep on mandating that their students submit their own work for intellectual theft and copyright infringement. Our education system is nil. This is a mere gimplse into the future of what is to come.

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