Obviously “Bailout Benny” has never created anything of value in his entire life (material or intellectual) and probably survives by stealing what he needs.

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.

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.

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.

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.

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.

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.

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.

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.

“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.