Perhaps balancing out this sop to special interests, Congress has also been working on the Orphan Works bills, discussed earlier here. The Senate version, called the Shawn Bentley Orphan Works Act, was unanimously reported out of the Judiciary Committee on May 15, although it is clear that negotiation about some of its provisions is still going on. The House version, which includes the objectionable “dark archives” provision, is still being marked up in the House Judiciary Committee; whether that provision will remain is something I just don’t know right now. But I do know that several issues remain in controversy in both houses, specifically the language addressing state sovereign immunity and the role of Copyright Office certified statements of “best practices” in defining the scope of a “qualifying search” that would afford a user the shelter of the orphan works reduction in liability.

Amidst all this give and take about copyright, the question ought to be asked whether any of these incremental changes will really make much difference. From the perspective of higher education, at least, there is a sense of tinkering around the edges of a severely broken system. PRO IP simply creates more bureaucracy and further trumpets the “sky is falling” approach to copyright of the entertainment industry. Orphan works is an area in which real reform is sorely needed, but one can legitimately ask if the bills being considered would actually work; the bills may be so laden with expensive and unnecessary hoops to be cleared that they will not make truly beneficial uses of orphan works any more possible or likely. Another example of this futility may be found in the recently concluded work of the Section 108 Study Group: although the Study Group’s report raises some interesting and key issues, it was only able to reach agreement to actually recommend minor changes that will not make much real difference. Instead of waiting for reforms that never come in any helpful way, it may be more fruitful in higher education to ask ourselves how we might simply get off the copyright merry-go-round.

The answer, of course, is in open access to scholarship, and there may be some recent developments that point a direction for encouraging open access as an alternative to the current system of copyright protection for commercial monopolies. An article in this month’s College & Research Libraries News by David Lewis, Dean of the Library at IUPUI, forcefully asserts that it is time for libraries to stop putting more and more money into the bloated and dysfunctional journal publishing system and to move funds to support open access infrastructure and venues. His article proposes specific steps that libraries can take to move off the endless cycle of higher journal prices that leads to less money for monographs and overall reduced access. He is suggesting an important step to get us off the copyright merry-go-round.

A major obstacle to open access, however, has always been resistance from faculty, for whom the system usually seems to work just fine. Tenure and promotion have been built around the core of commercial publishing, and it is very hard to communicate the reasons for moving away from that core. Until now. With the lawsuit filed against Georgia State by three major publishers, a real opportunity has arisen to show faculty members that giving copyright away to publishers primarily interested in share holder profit, not dissemination of knowledge, is no longer in their own best interests. At its root, this lawsuit challenges what faculty members, who provide the content for scholarly publications, want to be able to do with their own work and the work of their colleagues – communicate it to students. If the copyright system determines that they cannot do that without paying yet more money on top of the exorbitant prices charged to buy the works back initially, perhaps there will be a general recognition that they should not freely give that content away in the first place. A return to first principles would remind faculty that these works belong to them unless and until they choose to give them away, and that they are free to negotiate the terms of any transfer of copyright. Ironically, this lawsuit’s frontal attack on a core value in higher education may prove to be the best weapon yet to move scholarship off the increasingly dangerous and unstable copyright merry-go-round.

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This problem of establishing the rights in a very old work makes Brauneis’ article especially interesting at a time when Congress is considering ways to address the issue of orphan works – older works that are still protected for which no rights holder can be found. Brauneis mentions the orphan works proposals only in passing, but his investigations, and the lessons he learns from those inquiries, help clarify why orphan works are so problematic and suggest new directions for consideration of those problems.

First, as should already be clear, there is the problem that, as copyright term gets ever longer, it becomes harder and harder to identify authorship, trace rights, and even verify if the correct rights holder registered the work (this is very significant for works protected under the 1909 copyright act, but it could also be important if an infringement action were brought regarding a more modern orphan). For the song “Happy Birthday to You,” Brauneis is dealing with a relatively small and identifiable group of authors, yet the problems of identifying who wrote what and who should have registered which works are very knotty indeed. For genuinely orphaned works, these problems only multiply. As Brauneis points out, the rather scanty record-keeping efforts of the Copyright Office contribute to the difficulties in this area. He holds out hope for more comprehensive record retention in the digital age, although that is happening very slowly, and it is worth noting that the orphan works proposals also contain some requirements of additional recordkeeping to make diligent searching for rights holders a little bit easier.

Brauneis also notes the disincentives that are present to discourage potential users from challenging a dubious claim to copyright. In the case of “Happy Birthday to You,” there is substantial evidence that the song is not protected by copyright any longer, in spite of the myth, ubiquitous in copyright discussions, that it is. Nevertheless, the song generates $2 million in royalties for the company that claims to hold the rights. Since no single user pays a great deal for the rights, the users have little way to identify each other or act in concert, and blanket licenses make it difficult to distinguish exactly what one is paying for in any case, the song continues to generate a great deal of income and the public is denied a small but popular piece of its cultural heritage. This is not quite the same problem, of course, as that which prevents use of orphan works, but it is another example of structural difficulties in copyright that stifle creativity and learning.

Finally, Brauneis makes a fascinating point about the lack of any mechanism in copyright for obtaining the kind of prescriptive rights that are available for persistent (mis-)users of real property. When a trespasser uses land in a way that is continuous, open and “notorious” for a number of years, they may gain a prescriptive easement to use the land or even take title through adverse possession. When a copyright owner fails to enforce his or her rights, however, even if it fears that those rights would not stand up in court, no such legally cognizable rights are gained by the user. While one user may “infringe” without consequence (as many appear to do with “Happy Birthday to You”), the putative rights holder may continue to collect royalties from all those others who do not know about the dubious claim. All of the solutions proposed for the orphan works problems are merely attempts to mitigate the consequences for a potentially infringing use by reducing the available damages; Brauneis’ article raises the fascinating suggestion that that problem and others might be better addressed by allowing users to gain a legally recognized right in a work when and if they use that work in an obvious and long-term way and the copyright owner elects, for whatever reason, to “sit on her rights.” Such a solution would certainly expanded the cultural commons, although it might be useful in only a relatively few situations where the risk of litigation from a rights holder was very slim ( thus a “reasonably diligent search” would still be necessary). Most promising, however, is Brauneis’ comment that this kind of prescriptive rights approach to the problem of missing or inactive rights holders could be imposed judicially, rather than having to depend for a solution on a distracted and easily influenced Congress.

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Nowhere are these experiences and observations better synthesized than in a recent article by Richard Danner, Ruffy Research Professor of Law and Associate Dean for Information Services at Duke University Law School. In “Applying the Access Principle in Law: the Responsibilities of the Legal Scholar,” Danner does a superb job of explaining what is unusual about legal scholarship, what the experiences of changing the publication models have been and what needs and responsibilities for individual scholars remain.

One of Danner’s observations particularly struck me when I read this article, and that impression was confirmed by a conversation I had this week with several librarians. Contrary to the oft-repeated claim that open access will inevitably lead to loss of subscription income for publishers, Danner documents the experience of Duke Law School when it moved all of its journals to open access web accessibility. As Danner tells the story, the school had concluded that the expected loss of subscription income would be offset by the values gained from greater exposure to its 6 print journals. But in fact, there was almost no such decline in print subscriptions, even after 10 years of free access. Only one journal showed an overall decline (of about 2%) over that time period, while four showed significant increases in subscriptions. The sixth journal experienced a small increase. Clearly better access leads to subscriptions from readers who otherwise would not have known about the journals, especially the specialized ones, which exhibited the largest increases. This week a librarian I was speaking with confirmed that she had also experienced this unusual form of marketing, when faculty have asked her to subscribe to journals they have discovered through open Web accessibility.

Overall, Danner’s article is a masterful analysis of the structure of publishing in a particular field and how the “access principle,” a concept taken from John Willinsky’s book of the same name, could transform a field of scholarship. In spite of the oddities of legal scholarship, Danner is very successful at offering both an analysis and a call to action that deserve to be translated and applied in other fields.

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The big question is whether either bill actually succeeds, with success defined as a reasonable likelihood that a thousand flowers will bloom from the soil of orphaned works that otherwise would not have been seen for many more years. Opinion in the blogosphere is mixed; Public Knowledge, which was deeply involved in helping to draft the bills, is guardedly hopeful. Georgia Harper, on the other hand, writes this deeply pessimistic blog post that declares the bills “DOA. Too late even for last rites.” The issue, as I will discuss it, revolves around how burdensome it would be for libraries to actually rely on the procedure outlined in the bills to support digitization projects. Three issues seem to need discussion.

First, there is the requirement in the House bill that users of orphan works file a “Notice of Use” with the Copyright Office that would be maintained in a “Notice of Use Archive.” The notice would have to contain a description of the search for an owner that was made by the user, as well as lots of identifying information and a certification of good faith. This requirement is only in the House version, and it renders the Senate version much more appealing. A database of uses raises the specter of copyright owners fishing for defendants in a stocked pool, for one thing. But, realistically, this seems pretty unlikely. First, access to the database would be restricted by unspecified regulation of the Copyright Office. More importantly, if a diligent search really has been made (and libraries almost certainly would be doing so) most copyright owners who would be on the lookout for infringement would have been found. More problematic is the burden of fulfilling this requirement, a burden that would be hard to measure until (and if) a version of the bill with this requirement is in place and being used.

I certainly would rather this not be included in a final bill. But I also know that librarians are investing a lot of time, labor and money in digital collections as things stand now. I doubt that even a burdensome reporting requirement will discourage the commitment to greater access that drives these projects, especially when the content is something that could genuinely benefit scholarship and that has been previously unusable.

A second potential problem is the instruction to the Copyright Office to develop “best practices” for different kinds of content that would have to be followed for a search to qualify as reasonably diligent. Georgia Harper thinks this is a guarantee that the content industries will write the rules, and she may be right. Unlike the case of proposed file-sharing legislation, however, such a role for industry is not actually specified in the bills. In any case, I think most librarians working on digital projects would welcome the guidance of best practices, even if the door to using orphan works were opened only a little bit. So much of our collections are unavailable for use as things now stand, and we have such high certainty that many of those works genuinely have no one to care about how they are used, that even restrictive rules for a qualifying search would advance the cause of digital access. Again, I think many libraries will take the necessary trouble when the content and the opportunity seem worthwhile. Restrictive rules will help only small digitization projects, of course, which may be the point, but even so the digital environment could be greatly enriched.

Finally there are the added rules for pictorial, graphic and sculptural works. These are the categories whose owners have most vocally opposed orphan works reform because they fear that it will be too easy to call these works orphans. The problem is that most such works carry no obvious notice of the copyright owner. The proposed bills specify that this lack by itself does not make the work an orphan, and it directs the Copyright Office to certify a database “to facilitate the search for pictorial, graphic, and sculptural works that are subject to copyright protection.” Such a database would actually probably be welcomed by libraries, since it would both facilitate use of orphan works and provide a source for needed metadata. The big problem is that such a source does not seem to exist right now, and creation of it would delay implementation of the orphan works exception for as much as 5 years. Since images and graphical works are a large part of the collections libraries would like to digitize, this kind of delay would be a huge blow to the effort to give the public access to much of our unexploited cultural heritage.

Even with all these restrictions and potential problems for using the orphan works mechanism, I am inclined to think of these bills as half-full glasses. For one thing, it has been a long time since a genuinely user-centered proposal has even been considered by Congress. Also, this is a rare situation where libraries, higher ed., publishers and the recording industry have worked together and agreed on a reform regarding user rights. One might suggest, cynically, that the content industries only agreed to these proposals because they have been made too complex to be usable. But I do see potential uses here, based on the kinds of things I am asked about, even if only for a subsection of textual works that really are easily established orphans. If the provisions for pictorial and graphic works are long delayed, we will be no worse off than we are now. The only real downside would be if we accept this bill while a better alternative is possible, and regarding that possibility I agree with Georgia that no one should hold their breath.

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The quote in my title came from Prof. James Boyle of the Duke Law School, explaining how the very links that create value on the Web are still illegal for much of scientific literature, even when the texts are available in digital form. To use an image suggested by another Duke Law professor, Jerome Reichman, the “web” of science today resembles the Rhine river in medieval times — it is so clogged with demands for toll that progress is impeded. Just as merchants had to stop over and over again to pay each castle owner in order to be allowed to continue sailing the river, today researchers must stop at innumerable “toll gates” to gather the research they need. This is why, as Boyle said, “a picture of an article” is not enough; what scientific research needs is a “semantic web” of linkages that allows research to be structured and shared. Boyle explains this concept, and the legal and economic obstacles to it, in this column from the Financial Times, “The irony of a web without science.”

This concept of a true “web of science” was developed more fully by John Wilbanks of the Science Commons. He demonstrated very compellingly the vastly wasteful research process that is determined by the siloing of research as it now exists on the web by show how one would approach the task of finding research about a particular protein in various databases, including Google and PubMed. Then he showed what a true semantic web approach could produce; a much more targeted and efficient search, even when conducted (as it currently must be) over a relatively small field of content. His conclusion was that keyword searching is less and less useful for research in the life sciences and that the use of “ancient tools” like Google for such research is largely dictated by the access restrictions created by an outmoded system of law (copyright) and an outmoded economic model for publishing. Finding ways to loosen the stranglehold of copyright law over the research web should be a primary goal of all discussions of copyright limitations and exceptions, while the search for new ways to disseminate scholarly research should occupy the attention of every scholar who hopes to take advantage of the tools offered by the 21st century.

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First, about the free-rider problem. Sandy Thatcher, who is Director of the Penn State University Press, explains the issue as publishers see it in this reply to the quote from my post in the Chronicle. I want to be clear that I am not necessarily defending the practices at Georgia State; I cannot do so because I only know one side of the argument. One of the advantages a plaintiff gets in a lawsuit is a fairly long period to make their case publicly while the defendant is constrained from replying. But even if “free-riding” applies to the practices at GSU, it is important to note that our law tolerates and even encourages some degree of free-riding on intellectual property as a necessary condition to further creativity. That is the logic behind a long list of exceptions and restraints on the exclusive rights conferred by both copyright and patents, including fair use. My point about free-riding, however, is that it occurs at several places in the system of academic publishing. If GSU free-rides on the publishers, the publishers have likewise taken a unpaid ride on the labor of the University and its faculty when it acquired content from them without payment. Because this free-riding occurs at the very base-point of scholarly publishing, it really cuts off any argument against whatever is happening at GSU based on the incentive system copyright is supposed to create. The incentive for creation that copyright is supposed to offer simply does not exist because publishers absorb all the profits without passing them on to authors.

An exchange in the comments on my own post discusses this point in some depth. Monica McCormick argues that there is still an incentive system for authors, based on two points. One is the small amount of money that is usually paid to academic authors who publish monographs, and the other is the “stability” of the publishing system which advantages authors through promotion and tenure. Regarding the first point, there are some interesting replies from Prof. Kathleen Wallace, whose article “Marketing Ideas” addresses the issues of the scholarly communication system from the perspective of neither librarian nor publisher, but faculty author — the very person about whom we are arguing. So I leave that part of the incentive argument to Prof. Wallace and hope her article will generate some helpful discussion. As for the “stability” of the publishing system, I would note first that this advantage, insofar as it exists, does not seem to be a necessary creation of the copyright system as it is currently put into practice. It is certainly possible to image an equally serviceable system that does not rely on the uncompensated relinquishment of rights. Also, what stability there is in the system — based on effective evaluation and strong reputations — is partially itself the result of uncompensated labor done by faculty members working as reviewers and editors.

Finally, stability in scholarly publishing is currently very much in doubt, largely because of the astronomical prices changed by commercial publishers for academic journals. As more and more of a university’s budget goes for journal content, which often must be purchased repeatedly in different formats, less money is available to serve as incentive in other parts of the system. It is harder and harder to publish a scholarly monograph because sales have dropped so low; a decline that is directly attributable to funds being drawn away from monograph acquisitions by journal prices. McCormick’s point that we should distinguish between large commercial publishers and smaller academic ones, as well as between monograph and journals publishers, is exactly right. The problem is that the actions of the large commercial publishers — and we have to include Oxford and Cambridge Press, who are plaintiffs in the GSU suit, in this category even though the maintain a nominal affiliation with universities — are destabilizing the remainder of the system. It is simply not the case that all would be well of academics would just stop “pirating” their own works from victimized publishers.

Lastly, I want to comment on how all this should play out in the GSU lawsuit. If that case every reaches the stage of arguing the fair use defense, I hope the court will look very hard at the second fair use factor — the nature of the copyrighted work. Previously, the action on this factor has been minimal and has largely focused on published versus unpublished works and how much originality is necessary for “thick” or “thin” protection. But the economics of a particular segment of publishing, especially one as dysfunctional as scholarly publishing, ought to be considered when analyzing fair use, and factor two is a good place to do that. If the system is structured in a way that undermines the whole incentive purpose of copyright, as I have argued the scholarly publishing is, factor two, which really focuses on the expectations of creators of different types of works, should strongly favor an expansive application of fair use. After all, it is, uniquely, the creators themselves who are being sued here and who are asking for a space to make fair use of their own works. The court must determine what that space will look like, but it should be reminded that scholarly publishing simply does not function the way other systems of intellectual property creation do.

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The case out of California, Marketing Information Masters v. the Board of Trustees of California State University reaches a rather predictable result in dismissing an allegation of copyright infringement on the grounds that states and state institutions are immune from lawsuits by private individuals and corporations. Congress has tried to change this doctrine in regard to copyright by adopting section 511 of the Copyright Act in 1994, but the courts keep brushing that provision aside. William Patry comments negatively on this trend here, while Georgia Harper partially defends it here. But what is really interesting is that the district court in Marketing Information Masters allowed the suit to go forward after dropping Cal State as a defendant by leaving intact the claim against the specific university employee named in his individual capacity. Pretty frightening stuff for state university faculty.

If we now flip forward to the suit filed yesterday against Georgia State University, we have to wonder if the same sovereign immunity problem will lead to dismissal. The four university officials are named only in their official capacity; no one claims they actually infringed copyright themselves. So how will this case avoid being dismissed? The answer seems to be in one of the few exceptions to sovereign immunity, the doctrine that one can sue state officials in their official capacity if one is seeking only injunctive relief — an order to stop the infringing activity — rather than money damages (the Ex parte Young doctrine). The complaint filed against GSU takes exactly this tack, seeking only an injunction to stop the activity going forward, not damages for alleged infringement in the past. On that basis, we might actually get a decision about the meat of the claim, that electronic reserves are almost always infringing if the universities do not pay for permission.

This claim, if successful, would increase student costs for educational materials dramatically as schools would have to pass on the costs for permissions in addition to the money already spent when they financed the original research, purchased the resultant articles and then, often, purchased them again in digital format. If publishers get their way a fourth payment would be required, and it would come straight out of students’ pockets.

The complaint against Georgia State acknowledges fair use, as it must, but it relegates it to a tiny fraction of situations, none of which can realistically be expected to occur on a modern college campus. In effect, this is an attempt to enforce judicially a “pay-per-use” model of content distribution. The real irony is that it is justified as an attempt to remedy a “free-rider” problem — the claim that universities are appropriating the work of publishers and authors without just compensation. This claim is patently absurd, given the amount of money university libraries invest in published resources, but it is downright offensive when the real issue is clarified. Publishers here are themselves the free-riders, obtaining a huge amount of academic content from the universities and their faculty without compensation. The GSU complaint cites as an irony the fact that one of the professors who is cited as infringing the copyright of Sage Publishing has himself published three articles in Sage journals. The gall of the man! Nowhere is it mentioned that he was required to give up those articles without payment for the privilege of publishing with a company that is now suing his employer to recover even more money for those freely donated articles.

A little bit of attention to the economics of scholarly publishing quickly undermines the claim in this complaint that, without permission fees for electronic reserves, the incentive system of copyright will be undermined. No monetary incentive currently exists for the vast majority of academic publishing, from the point of view of faculty, yet academics keep writing. There is no evidence at all that this well of free content will suddenly go dry if publishers are not able to collect an additional income stream from that well. If this suit goes forward in spite of sovereign immunity, that should be the issue on which the court focuses its attention.

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The core of the model agreement is a double license; the author grants to the publisher both a time-limited exclusive right of first publication and a perpetual, non-exclusive license to publish, distribute and sublicense. Subject to these two licenses, copyright is retained by the author. The model agreement contains a number of options or “fill-in-the-blank” points where publishers can customize the license to fit specific conditions. As an attempt to lower the transaction costs associated with publishing, and as an equitable balancing of needs that do not have to be in permanent competition, this is an excellent model to be followed in academic publishing.

It is unfortunate but predictable that one of the most immediate responses from the publishing community was a very revealing demur to the BioOne model agreement project. A university press director posted his objections within two days of the announcement; his position that the agreement is inappropriate even for academic publishers exposes the growing gap between academic publishing and the values of the academy that supports it.

One complaint is that, without an exclusive right in the published works, the publisher will have no standing to sue putative pirates who want to steal academic work. First, we should note that there will still be a rights holder under the model agreement who can enforce the copyright – the author. The problem is that the author’s interests not only do not coincide with the publisher in some cases, they sometimes conflict. The objecting press director notes that the author may actually benefit from wider distribution by a “pirate,” so one wonders why authors should continue to sign away copyrights to organizations who want to wield them as litigation weapons contrary to the authors’ interests. Copyright is supposed to be an author’s right; its genesis as a publisher’s right (associated with their role in censoring unpopular content) is centuries out of date.

And this brings us to the second revealing question about this objection – who are the pirates we are supposed to fear enough to give up copyright entirely to publishers? In fact, the only “pirates” against whom publishers tend to threaten litigation are the authors themselves and their institutions. The “theft” these publishers want to control is faculty authors passing out copies of their work to their own students or to others on campus, to their colleagues at other institutions, and via their websites. No one seriously expects large-scale republication of scholarly content for profit; all that is being defended by these grabs for exclusive copyright transfer is the traditional, and increasingly expensive, subscription model of access. If there is real danger that subscriptions will be canceled because authors retain their own copyrights, and this has never been shown to be the case, all it would illustrate is that this traditional business model has runs its course and no longer serves the interests of those it was created by and for.

The Ithaka report on university publishing asked presses and their parent institutions to reexamine how well publishing is integrated with the interests and values of the academy and the specific university. The BioOne Model Publication Agreement can help advance that integration, and objections to it are a profound illustration of the problem we need to address.

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That is why so much of the Copyright Act is dedicated to exceptions to the exclusive rights. In the Government Printing Office edition, over one-third of the text is dedicated to sections 107 through 122, which incorporate most, but not all, of the limitations and exceptions.

In international treaties, the limitations and exceptions to copyright are supposed to be subject to a “three-step test” which has its origin in the Berne Convention, initial adopted by many countries (but not the US) in 1886. The US joined Berne in 1988 and oversaw its incorporation into international trade law in 1994. As it now stands, the three step reads like this:

Members shall confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder. (Art. 9(2) of Berne and Art. 13 in the TRIPs Agreement)

It is an interesting question whether some of the exceptions in the US Copyright Act violate this three step test – does fair use apply only to special cases, for instance, or conflict with normal exploitation of a work? The recent emphasis our courts have placed on transformative use as the sine qua non of fair use may be a direct reaction to this three part test.

So far, only one provision of the US Copyright Act has been found to violate the TRIPs three step test – the section 110(5)(B) exemption for businesses that allows installed TV sets and radios to “publicly perform” copyrighted works for patrons of those establishments. As interesting as that case is, the discussion of how fair use fits into this framework is even more interesting and important. A recent blog post by William Patry on this subject arguing that fair use does not violate the three step test is a great primer about this discussion.

Other attention to limitations and exceptions include this discussion of a proposal made to the World Intellectual Property Organization for a formal discussion and agreement about limitations and exceptions, something the US says it is not ready for. Closer to home, of course, is the recently released report by the Section 108 Study Group, proposing changes in the US copyright exception that permits library preservation work and interlibrary loan.

Most exacting, from my point of view, is this full-day conference being held at Duke Law School this Saturday on the topic of “Copyright Limitations and Exceptions: from access to research to transformative use.” There will be an exciting group of scholars from the US and European here to discuss the various issues and problems, with a focus on practical strategies to encourage creative uses of digital content. I hope any readers who are close to the North Carolina Research Triangle will consider attending this conference, and that those who cannot will look for podcasts, which are often posted by the Center for the Study of the Public Domain.

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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 Virginia who were required to submit their work to Turnitin or get a zero challenged the company in court. The district court’s opinion, dismissing all of the students claims, was issued March 11 and has provoked a lot of reaction, The Chronicle of Higher Education has a story about those reactions here, and William Patry discusses several aspects of the case in his blog post called “Turn-it-it and Kiss-it-goodbye.”

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.

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