Turnitin and hold your nose March 27, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Fair Use, Technologies , 1 comment so farI have been very neglectful of posting for the past two weeks, mostly due to the pressures of other work, but the attention paid to the recent court decision involving the online plagiarism detection service Turnitin has finally provoke me enough.
Turnitin is a web-based service that compares submitted papers to vast database of essays available on the web and it is own proprietary database. It offers instructors a report on how likely it is that the given paper is plagiarized. Four high school students from
One aspect of the decision worth mentioning is its discussion of the claim that Turnitin infringes copyright because it adds a copy of every paper to its database as soon as the paper is submitted so it can be compared to later submissions. The plaintiffs tried to prevent this by indicating their lack of consent to have their work copied in this way on the papers they submitted, but the court found that the click-through contract they were obligated to agree to in order to submit in the first place took precedence. More on that in a moment. On the copyright issue, the court found that the company had a valid fair use defense regarding their storage and use of student work, even if the contract giving them permission had failed (which it did not).
I have been torn about the fair use analysis the court used in this case. I have a hard time justifying to myself the business model Turnitin use, although my doubts are likely bound up with broader concerns about this kind of attempt to use technology to force people to behave with integrity. But, to my mind, Turnitin’s business model is as dependant on infringement as is Grokster. The district court disagreed, finding that Turnitin made a transformative use of the works it archived for later comparision. What strikes me most about this decision is the way “transformative use” has become a talisman, invoked whenever the court wants to find fair use. The copyright statute seems to indicate pretty clearly that even non-transformative uses can be fair use, but courts are now so enamored with the notion of transformation that they are now finding it even in unlikely situations because it has become the sine qua non of fair use. This is both good and bad for higher education; some educational uses of copyrighted works seem to be purely iterative, not transformative, and fair use in those cases seems increasingly hard to argue. On the other, the more the concept of transformative use is expanded, the better it will be for educational; some of those uses that don’t seem transformative to me may well seem so to our courts.
The other, more troubling aspect of the Turnitin decision was the court’s attitude to the click-wrap license. The plaintiff students had no choice but to click through the license; they faced a zero if they didn’t and there was no way to communicate with Turnitin until they had accepted the license. Nevertheless, they tried to make their objection to the term that allowed Turnitin to copy and save their work as soon as possible; they included a notice with their paper that said they did not consent. Tough luck, said the court; you agreed to the license and you have to live with it. This strict enforcement of a “take it or leave it” license even when the party on whom it is imposed objects in a timely way seems to make a mockery of the notion of a contract as a bargain that may be “unconscionable” if there is no meaningful chance to negotiate.
If we need further confirmation that the court was aiming at a particular result and disregarding a reasoned discuss of the law, there was its astonishing dismissal of the plaintiff’s argument that, as minors, contracts they entered into are voidable. The court recognized that this was the usual rule in contract law, but said that the plaintiffs could not avail themselves of it because they had accepted the “benefits” of the contract. What benefit had they accepted, I wondered. Standing to sue, the court replied, the right to bring the case to challenge the contract itself. By this logic, of course, no contract could ever be challenged on the basis of “infancy.” Such absurd and circular reasoning can only serve, as Bill Patry says, to increase the cynicism so many people feel toward our courts.
Copyright Reform Suggestions, part 2 March 14, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation, Digital Rights Management, Fair Use, Uncategorized , add a commentThey are almost five months old but now, and I meant to point them out a long time ago, but the six-point proposal for copyright reform released by Public Knowledge is well worth reading, studying and mailing to your local Congressman.
As has been said before on this site, it is probably passed time that our copyright law be throughly revised and made flexible enough to address new technologies that have come into existence since 1978 as well as to anticipate and accommodate those that have yet to be invented or widely-used. But there is not a lot of political will to undertake a comprehensive copyright reform these days, and the overwhelming influence the biggest content companies seem to wield with major players in Congress suggests that comprehensive reform might do more harm to the interests of consumers and, especially, educators, then good. Until we can reasonable hope for through-going reform in a positive direction, the kind of incremental changes suggested by Public Knowledge seem like the best direction to focus our energies. Although it is fair to call these proposed reforms “more modest,” some of them would be quite radical in practice.
Two of the suggestions made by Public Knowledge will be quite familiar to those who follow copyright issues — fair use reform that would make the four factor test more usable and sensible in today’s digital environment and orphan works legislation to reduce the risk of making productive, socially beneficial works that are not currently subject to commercial availability and whose rights owners are AWOL. One proposal that I have not written about before in this space, but have discussed elsewhere, is that copyright holders should be required to give notice to consumers whenever they are imposing contractual or technological restrictions on a work that takes it outside of the uses reasonable expected under copyright law with its exceptions, including fair use. The principle that consumers should know what they are buying and whether they an use it for reasonably foreseeable purposes is actually quite basic in our commercial law, and neither contracts nor DRM systems should be allowed to defeat reasonable expectations of a purchaser without prior notice.
All of these suggestions — the remaining three are limits on secondary liability, protections against copyright abuse and simplified, fairer licensing rules — deserve our attention and support, at least until a more comprehensive and fair reform of copyright seems possible.
Freeconomics March 6, 2008
Posted by Kevin Smith in : Open Access and Institutional Repositories, Scholarly Publishing , 1 comment so farWhat a delightful word to describe the increasing need to talk about the economics of free stuff. As strange as that idea sounds, it is the subject of a recent article in Wired magazine called “Free! Why $0.00 is the Future of Business.” Besides coining the word “freeconomics” (as far as I know), author Chris Anderson describes the forces that drive prices in the digital world down toward nothing. He identifies two important trends that tend to make the Web “the land of the free.”
First, there is the phenomenon of “cross-subsidies,” where a product or service is given away for nothing in order to create an income stream somewhere else. Anderson uses the example of King Gillette, who gave away his safety razors in order to get men hooked on using them and to make money selling the disposable blades. As Anderson points out, the Internet provides greater freedom for businesses to make money from one set of customers while giving things away to another. Advertising supported Web business are only one of many examples.
The other trend Anderson identifies is “simply that anything that touches digital networks quickly feels the effect of falling costs.” He provides a nice discussion of why the cost of Internet communication is approaching or has reached the point where it is close enough to free so that we can “round down to zero.”
Anderson’s article ends with a “taxonomy of free” that describes five business models built around a base price of zero.
What has this to do with scholarly communications? We are already seeing the pressure towards free for all kinds of intellectual property on the Web. Music, of course, was the first IP commodity to head to zero, and it did so before distributors could catch on and move to a zero-based business model. Now the music companies are scrambling to find ways to add value to music in order to move customers back from the lure of $0.00. That is a very difficulty task, needless to say.
As the same pressures are exerted on digital scholarship, those who make that scholarship available, whether traditional publishers, libraries or individual scholars, need to plan ahead for how they will at least recover basic costs as the price of access falls. If we sit on our hands and deny that this is happening, we may well witness “the end times for tradition journal publishing,” as was recently predicted in Inside Higher Ed.
The issue is going to be how to add value to what could be obtained for free, in order to recover costs. To guide us, here is one more article about “freeconomics” — In “Better than Free, Edge columnist Kevin Kelly suggests eight “generatives” that can move a product past free to a point where consumers will pay something, not for the product necessarily, but for the value that comes with it. Kelly’s discussion of these “generatives” — immediacy, personalization, interpretation, authenticity, accessibility, embodiment, patronage and findability — should be required reading for those who advocate, consider or foresee that move toward free access to scholarship. Even if we fear it, we are likely to have to deal with it. The ability to add value along the lines that Kelly suggests may keep us and the scholarly apparatus we have grown familiar with over the years afloat in the age of freeconomics.
The discordant argument for harmony March 3, 2008
Posted by Kevin Smith in : Copyright Issues and Legislation , 2commentsLast Monday, in his regular column for the Financial Times, James Boyle discussed the ubiquitous argument that copyright laws should be harmonized around the world. Often phrased as a argument about competitive advantage, the call for harmonization, Boyle points out, only goes in one direction — upwards. No one ever asks that the laws be harmonized downward in favor of lesser protection, even when there is substantial evidence that copyright protection is now far more restrictive and protective than is necessary to accomplish the purpose for which it is intended, to provide incentives for creation. As Boyle indicates, copyright has become an “evidence-free zone” where the mounting number of studies that suggest that we are over-protecting intellectual property in a way that actually discourages and depresses creativity and innovation are consistently ignored. One economic study that Boyle cites, for example (and that I have mentioned before in this space), finds that the optimal term of copyright protection is only 15 years, not the average term we now have of approximately one-hundred years.
As if on cue, another industry lobbying group, dressed up as a think-tank, is touting their latest argument for additional protection; the Progress and Freedom Foundation wants to extend the performance right in US Copyright law to include recording artists. The principle argument for this grab at additional royalties, of course, is that other countries give recording artists such a right, and the laws ought to be harmonized. No thought is given, of course, to the possibility of seeking harmonization by lobbying other countries to drop this particular right, even though its absence in the United States is not shown to have done any harm to our recording industry. The argument that radio play is an economic benefit to the recording industry is dismissed as irrelevant, proving Boyle’s point about the fear of actual evidence.
Until legislators start to demand hard economic evidence for the changes they are asked to make to intellectual property laws, we will continue to have this game where lobbyists convince one nation to adopt a stricter IP regime than the rest of the world, then try to force that regime down everyone else’s throats in the name of harmony.
