Monday, March 03, 2008

ED Va: not a rocket docket for copyright/turnitin?

Information in an article by Andy Mannix at the Minnesota Daily suggests that the Eastern District of Virginia [ED Va] might NOT be a "rocket docket" on copyright matters:

On March 27 of last year [2007], four high school students sued iParadigm for $900,000 on the basis of intellectual property infringement.

Bob Vanderhye, the students' attorney, alleged that being required to submit their work to Turnitin's database was a violation of copyright law.

Specifically, Vanderhye said the archival nature of Turnitin maintaining student papers in its database poses serious legal issues.

"When they archive it, then they're stealing (students') property," Vanderhye said. "They're using the students' intellectual property without the students' permission - for a profit. It's as simple as that."

Thomas Cotter, a University law professor who specializes in intellectual property law, said Turnitin's archival component raises legal questions. [IPBiz note: Thomas F. Cotter joined the University of Minnesota Law School faculty in 2006. Among other things, he wrote An Economic Analysis of Enhanced Damages and Attorneys’ Fees for Willful Patent Infringement, 14 Federal Circuit Bar Journal 291-331 (2004)]

"Someone who makes an unauthorized copy of the student paper would be, at least arguably, infringing their copyright by doing that," he said.

However, Cotter said archiving the work might be protected by fair use laws, in which case it would not be in violation of intellectual property laws. [IPBiz note: instead of "fair use," might the writing of papers fall within the "work for hire" doctrine, as part of a contract between student and university?]

He said fair use is often difficult to determine, and the case falls into a gray area that could be argued either way.

"It's a difficult question, to predict exactly what a court would do," he said.

Vanderhye argues that Turnitin doesn't meet legal fair use standards.

To illustrate this to the court, Vanderhye said he submitted a Shakespeare quote to Turnitin, and then requested a student paper that showed up as a match.

Soon after, Vanderhye received a copy of an Arizona high school sophomore's 10-page, double-spaced paper that included a wealth of personal information, he said.

"I have her paper verbatim, which is not transformative in any way," he said. "It could not possibly be considered to be fair use when I have every single word that she wrote in the same way that she submitted it."

According to Eastern District of Virginia court records, on Jan. 9 - two weeks before the case was scheduled to go to trial - Judge Claude Hilton ordered it to be stricken from the court's trial docket, and the case is currently pending an opinion.

Vanderhye said this is an atypical decision, and he is awaiting Hilton's ruling before taking further legal action.

"He didn't issue an opinion," Vanderhye said. "All he did was take it off the trial calendar and say he would be issuing an opinion in the future. We have no idea what's going on with it."

Vanderhye said depending upon the opinion issued, he might appeal.

Also in the Minnesota Daily article:

This year, the contract was negotiated at $15,073.75, Zenk said.

There was ambiguity as to the impact of turnitin:

In the six years of contracting with Turnitin, Zenk said she is not aware of how the Web site has impacted academic integrity at the University.

"I don't really get the sense that plagiarism is any better or worse than it ever has been," she said.

Ellinger expressed a similar sentiment, suggesting that if the problem of plagiarism at the University is any better now than it was a few years ago, it couldn't be attributed to Turnitin, just as "you don't attribute the building of a house to a hammer."

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