More thoughts about Turnitin

Thanks to all who have posted interesting comments about Turnitin. I particularly appreciate the thought behind the comments arguing that Turnitin has no fair use defense, but I haven’t changed my mind. Let me explain why I still think it’s fair use in the limited space this forum permits.

At the outset, I’ll concede factors 2 and 3 for the plaintiffs, although in at least some cases the nature of the copyrighted work may be sufficiently factual (i.e. academic research paper) that 3 isn’t the slam dunk that some have suggested. That having been said, remember that factors 2 and 3 alone are not enough to swing fair use for a plaintiff, as we learned in the Sony case, where factors 1 and 4 insulated widespread wholesale copying of fictional works.

It’s true that Turnitin is engaged in a commercial endeavor, but that alone doesn’t swing a fair use analysis either. In Campbell v. Acuff-Rose, the Supreme Court understood that people create parodies for commercial purposes, but still reversed the lower court’s pro-plaintiff decision. In doing so, the Court astutely observed that commercial use is a factor that weighs against fair use, but that a great deal depends on whether the defendant’s use substitutes for the plaintiff’s. Although the Turnitin’s use is commercial, its purpose in doing so is to produce critical information about the scholarly bona fides of the plaintiff and others, and not to create copies that displace the plaintiff’s work in the marketplace.

Now let’s consider the markets that the defendant’s use might affect. First, it may diminish the plaintiff’s ability to sell papers to people who want to plagiarize. Second, the defendant may diminish the plaintiff’s ability to sell his paper to outfits like Turnitin for purposes of trying to catch plagiarists.

As for the first market, Turnitin’s use does not substitute for the plaintiff’s work. Yes, Turnitin’s use affects that market, but that is because Turnitin produces information that exposes the plaintiff and the plaintiff’s customer as dishonest academics. That’s criticism and comment, and it does not count as affecting the marketplace for the copyrighted work. Campbell stands for the proposition that if people don’t want the plaintiff’s product because of something they learned from the defendant’s alleged infringement, that is not an effect on the market for the copyrighted work. To quote the Court, this is the “distinction between potentially remediable displacement and unremediable disparagement.”

As for the sale of the plaintiff’s work for detection of plagiarism, the effect on the marketplace is small at best. If the plaintiff wants to exploit a market for sale of manuscripts to people who want to plagiarize, the plaintiff will not sell into any market for catching plagiarists. Additionally, the plaintiff cannot claim that he writes specifically for the detection of plagiarism because there’s no demand for a work written for that purpose. A work is valuable for detecting cheaters only if it’s already a published work that someone might find and use, or if it has been sold to plagiarists. There is no meaningful independent demand for works used to catch plagiarists. Thus, its elimination would have no effect on the production of copyrighted works. Accordingly, the effect on this market, even if considered an effect on the market for purposes of copyright, is too small to swing factor 4 to the plaintiff.

Accordingly, I conclude that the defendant’s case in factors 1 and 4 is strong enough to overcome the plaintiff’s strength in 2 and 3.

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4 Responses

  1. this isn't f/u says:

    I’m sorry, but I don’t think that Turnitin’s case shares any of the same policy considerations that parody cases. The parody rationale is pretty narrow in the first place, and it’s unlikely that current law extends the rationale to this use (note that a “transformative” analysis of fair use might)

    Also, I don’t think that turnitin’s use is justifiable for the “produce critical information about the scholarly bona fides of the plaintiff and others” reason you suggest. This is true with respect to only part of the copyright infringement analysis. That is, it’s use in comparing to others on the front end is probably saved, but NOT the keeping it to compare with others. This, of course, might turn on the holdings of things like Google Books. However, creating a database of copyrighted works seems to not benefit from your analysis.

    Also, I’m not sure that I entirely by your market analysis. You seem to forget that others MAY wish to pay authors to allow them to use their paper to detect cheating. It’s not hard to imagine that a site would require payment to use the service but then pays each author of an original paper that gets submitted.

    Finally, I think that Turnitin.com has an even less academic problem because the students seem to have said that they could check the papers but not store it. Sounds like a breach of contract too.

  2. this isn't f/u says:

    I’m sorry, but I don’t think that Turnitin’s case shares any of the same policy considerations that parody cases. The parody rationale is pretty narrow in the first place, and it’s unlikely that current law extends the rationale to this use (note that a “transformative” analysis of fair use might)

    Also, I don’t think that turnitin’s use is justifiable for the “produce critical information about the scholarly bona fides of the plaintiff and others” reason you suggest. This is true with respect to only part of the copyright infringement analysis. That is, it’s use in comparing to others on the front end is probably saved, but NOT the keeping it to compare with others. This, of course, might turn on the holdings of things like Google Books. However, creating a database of copyrighted works seems to not benefit from your analysis.

    Also, I’m not sure that I entirely by your market analysis. You seem to forget that others MAY wish to pay authors to allow them to use their paper to detect cheating. It’s not hard to imagine that a site would require payment to use the service but then pays each author of an original paper that gets submitted.

    Finally, I think that Turnitin.com has an even less academic problem because the students seem to have said that they could check the papers but not store it. Sounds like a breach of contract too.

  3. Obbop says:

    In my neck of the woods TurnItIn would just hire Guido the Neck to go out and break a few legs, perhaps some knees and fingers, too, and……

    voila’, problem solved.

    Why do folks male things so dern’ complicated nowadays?

    There’s tried-and-true methods for solving so many of our problems.

  4. Dow Jones says:

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    Section 2385. Advocating overthrow of Government

    Whoever knowingly or willfully advocates, abets, advises, or

    teaches the duty, necessity, desirability, or propriety of

    overthrowing or destroying the government of the United States or

    the government of any State, Territory, District or Possession

    thereof, or the government of any political subdivision therein, by

    force or violence, or by the assassination of any officer of any

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    Whoever, with intent to cause the overthrow or destruction of any

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    matter advocating, advising, or teaching the duty, necessity,

    desirability, or propriety of overthrowing or destroying any

    government in the United States by force or violence, or attempts

    to do so; or

    Whoever organizes or helps or attempts to organize any society,

    group, or assembly of persons who teach, advocate, or encourage the

    overthrow or destruction of any such government by force or

    violence; or becomes or is a member of, or affiliates with, any

    such society, group, or assembly of persons, knowing the purposes

    thereof –

    Shall be fined under this title or imprisoned not more than

    twenty years, or both, and shall be ineligible for employment by

    the United States or any department or agency thereof, for the five

    years next following his conviction.

    If two or more persons conspire to commit any offense named in

    this section, each shall be fined under this title or imprisoned

    not more than twenty years, or both, and shall be ineligible for

    employment by the United States or any department or agency

    thereof, for the five years next following his conviction.

    As used in this section, the terms ”organizes” and

    ”organize”, with respect to any society, group, or assembly of

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